2009 Regular Session
To: Ways and Means
By: Representative Watson
AN ACT TO CREATE NEW SECTION 27-65-26, MISSISSIPPI CODE OF 1972, TO CLARIFY THE APPLICATION OF THE SALES TAX TO CERTAIN ELECTRONICALLY TRANSFERRED DIGITAL PRODUCTS; TO AMEND SECTIONS 27-67-3 AND 27-67-5, MISSISSIPPI CODE OF 1972, TO CLARIFY THE APPLICATION OF THE USE TAX TO CERTAIN ELECTRONICALLY TRANSFERRED DIGITAL PRODUCTS; TO AMEND SECTIONS 27-65-5, 27-65-93, 27-65-105, 27-67-4, 27-67-7, 27-67-9, 27-67-11, 27-67-13, 27-67-15 AND 27-67-17, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO PROVIDE THAT THE GROSS INCOME OF BUSINESSES ENGAGING OR CONTINUING IN THE BUSINESS OF PROVIDING TELECOMMUNICATIONS SERVICES AND OTHER SIMILAR SERVICES INCLUDING, BUT NOT LIMITED TO, INTERNET SERVICES, INTERNET PROTOCOL TELEVISION (IPTV) SERVICES, SATELLITE TELEVISION SERVICES AND MOBILE TV BROADCASTING SERVICES, SHALL BE EXEMPT FROM THE SPECIAL SALES TAX IMPOSED IN SECTION 1 OF SENATE BILL NO. 3268, 2009 REGULAR SESSION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 27-65-26, Mississippi Code of 1972:
27-65-26. (1) Upon every person engaging or continuing within this state in the business of selling, renting or leasing specified digital products, there shall be levied, assessed and shall be collected a tax equal to seven percent (7%) of the gross income of the business. The sale of a digital code that allows the purchaser to obtain a specified digital product shall be taxed in the same manner as the sale of a specified digital product. The tax is imposed when:
(a) The sale is to an end user;
(b) The seller grants the right of permanent or less than permanent use of the products transferred electronically; or
(c) The sale is conditioned or not conditioned upon continued payment.
(2) Charges by one (1) specified digital products provider to another specified digital products provider holding a permit issued under Section 27-65-27 for services that are resold by such other specified digital products provider shall not be subject to the tax levied pursuant to this section.
(3) For purposes of this section:
(a) "Specified digital products" means electronically transferred digital audio-visual works, digital audio works and digital books.
(b) "Digital audio-visual works" means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.
(c) "Digital audio works" means works that result from the fixation of a series of musical, spoken or other sounds, including ringtones. "Ringtones" means digitized sound files that are downloaded onto a device and that may be used to alert the customer with respect to a communication.
(d) "Digital books" means works that are generally recognized in the ordinary and usual sense as "books."
(e) "Electronically transferred" means obtained by the purchaser by means other than tangible storage media.
(f) "End user" means any person other than a person who receives by contract a product transferred electronically for further commercial broadcast, rebroadcast, transmission, retransmission, licensing, relicensing, distribution, redistribution or exhibition of the product, in whole or in part, to another person or persons.
(g) "Permanent use" means for purposes of this section for perpetual or for an indefinite or unspecified length of time.
(h) "Digital code" means a code that permits a purchaser to obtain a specified digital product at a later date.
SECTION 2. Section 27-65-5, Mississippi Code of 1972, is amended as follows:
27-65-5. "Wholesaler," "jobber" or "distributor" means a person doing a regularly organized wholesale or jobbing business, known to the trade as such, and selling to licensed retail dealers or other wholesalers for resale in the regular course of business. This classification has no bearing on rates of tax due under this chapter, each sale or part of sales being taxable or exempt depending upon the class in which it falls.
"Wholesale sales" shall apply to:
(1) A sale of tangible personal property taxable under Sections 27-65-17 and 27-65-25 for resale in the regular line of business, when made in good faith to a retailer regularly selling or renting that property and when the dealer is licensed under Section 27-65-27 of this chapter if located in this state.
A sale of a service taxable under Section 27-65-23 for resale in the regular line of business, when made to a regular dealer in that service and when the dealer is licensed under Section 27-65-27 of this chapter if located in this state, or a charge for custom processing rendered upon merchandise for resale or rental by a dealer licensed under Section 27-65-27.
A sale of telecommunications services taxable under Section 27-65-19 for resale in the regular course of business, when made to a regular telecommunications provider of the service and the provider is the holder of a permit issued under Section 27-65-27 and is located in this state or is providing telecommunications services in this state.
A sale of specified digital product taxable under Section 27-65-26 for resale in the regular course of business, when made to a regular dealer of specified digital products and the dealer is the holder of a permit issued under Section 27-65-27 and is located in this state.
"Wholesale sale" shall not include a transaction whereby property is delivered to, and collection for the transaction is made from, a person that will consume the property rather than resell it even though the billing is to a retailer.
* * * However, * * * when a taxpayer sells merchandise and has paid a rate equal to the retail rate of tax on the purchase price to a wholesaler, the taxpayer may take credit for the tax paid to the wholesaler from the tax due on the sale of the merchandise specifically included in his return to the commissioner.
(2) A sale of tangible personal property (except sand or gravel when sold by the producer thereof) or service which is to become a component part of a structure or improvement erected, constructed, repaired, or made only when the sale is made to a contractor taxable under Section 27-65-21 of this chapter on the contract in which the component materials are to be used; and only when the contractor holds a material purchase certificate as required by Section 27-65-21 of this chapter.
(3) A sale of boxes, crates, cartons, cans, bottles and other packaging materials to a retailer or retail custom processor for use as a container to accompany goods or services sold by the retailer or custom processor where possession thereof will pass to the customer at the time of sale of the goods or services contained therein.
(4) The value of soft drinks and syrup withdrawn from the business by a manufacturer for sale at retail and food or drink withdrawn by a manufacturer or wholesaler to be sold through full service vending machines for human consumption.
The quantity of property or services sold or the price at which sold is immaterial in determining whether or not a sale is at wholesale. Sales may be classed as wholesale, or exempt, only if evidenced by proper and adequate records and invoices to substantiate the wholesale rate or exemption from the tax on each individual sale.
The substantiation of the wholesale sales must be by an invoice clearly indicating the date, the name and address of the vendor and vendee, the items sold and the price thereof. Such proof of wholesale sales shall be filed in chronological order and thus preserved for a period of three (3) years from the date of sale. These records shall be subject to inspection by the commissioner and his agents, at their discretion, for the verification of returns filed by either the wholesaler or his customers.
The substantiation of an exempt sale must be by an invoice containing the same information as required for the wholesale sales. This requirement shall apply equally to a retailer making wholesale or exempt sales.
Any failure to comply with all the above requirements shall subject the violator to the retail rate of tax on all such violations.
SECTION 3. Section 27-67-3, Mississippi Code of 1972, is amended as follows:
27-67-3. Whenever used in this article, the words, phrases and terms shall have the meaning ascribed to them as follows:
(a) "Tax Commission" means the State Tax Commission of the State of Mississippi.
(b) "Commissioner" means the Chairman of the State Tax Commission.
(c) "Person" means any individual, firm, partnership, joint venture, association, corporation, estate, trust, receiver, syndicate or any other group or combination acting as a unit and includes the plural as well as the singular in number. "Person" shall also include husband or wife, or both, where joint benefits are derived from the operation of a business taxed hereunder or where joint benefits are derived from the use of property taxed hereunder.
(d) "Taxpayer" means any person liable for the payment of any tax hereunder, or liable for the collection and payment of the tax.
(e) "Sale" or "purchase" means the exchange of properties for money or other consideration, and the barter of properties or products. Every closed transaction by which title to, or possession of, tangible personal property or specified digital products passes shall constitute a taxable event. A transaction whereby the possession of property or products is transferred but the seller retains title as security for payment of the selling price shall be deemed a sale.
(f) "Purchase price" or "sales price" means the total amount for which tangible personal property or specified digital product is purchased or sold, valued in money, including any additional charges for deferred payment, installation and service charges, and freight charges to the point of use within this state, without any deduction for cost of property or products sold, expenses or losses, or taxes of any kind except those exempt by the sales tax law. "Purchase price" or "sales price" shall not include cash discounts allowed and taken or merchandise returned by customers when the total sales price is refunded either in cash or by credit, and shall not include amounts allowed for a trade-in of similar property or products.
(g) "Lease" or "rent" means any agreement entered into for a consideration that transfers possession or control of tangible personal property or specified digital product to a person for use within this state.
(h) "Value" means the estimated or assessed monetary worth of a thing or property. The value of property or products transferred into this state for sales promotion or advertising shall be an amount not less than the cost paid by the transferor or donor. The value of property or products which have been used in another state shall be determined by its cost less straight line depreciation provided that value shall never be less than twenty percent (20%) of the cost or other method acceptable to the commissioner. On property or products imported by the manufacturer thereof for rental or lease within this state, value shall be the manufactured cost of the property and freight to the place of use in Mississippi.
(i) "Tangible personal property" means personal property perceptible to the human senses or by chemical analysis, as opposed to real property or intangibles. "Tangible personal property" shall include printed, mimeographed, multigraphed matter, or material reproduced in any other manner, and books, catalogs, manuals, publications or similar documents covering the services of collecting, compiling or analyzing information of any kind or nature. However, reports representing the work of persons such as lawyers, accountants, engineers and similar professionals shall not be included. "Tangible personal property" shall also include tangible advertising or sales promotion materials such as, but not limited to, displays, brochures, signs, catalogs, price lists, point of sale advertising materials and technical manuals. "Tangible personal property" shall also include computer software programs.
(j) "Person doing business in this state," "person maintaining a place of business within this state," or any similar term means any person having within this state an office, a distribution house, a salesroom or house, a warehouse, or any other place of business, or owning personal property located in this state used by another person, or installing personal property in this state. This definition also includes any person selling or taking orders for any tangible personal property, either personally, by mail or through an employee representative, salesman, commission agent, canvasser, solicitor or independent contractor or by any other means from within the state.
Any person doing business under the terms of the article by reason of coming under any one or more of the qualifying provisions listed above shall be considered as doing business on all transactions involving sales to persons within this state.
(k) "Use" or "consumption" means the first use or intended use within this state of tangible personal property or specified digital product and shall include rental or loan by owners or use by lessees or other persons receiving benefits from use of the property or product. "Use" or "consumption" shall include the benefit realized or to be realized by persons importing or causing to be imported into this state tangible advertising or sales promotion materials.
(l) "Storage" means keeping tangible personal property or specified digital product in this state for subsequent use or consumption in this state.
(m) "Specified digital products" shall have the meaning ascribed to such term in Section 27-65-26.
SECTION 4. Section 27-67-5, Mississippi Code of 1972, is amended as follows:
27-67-5. There is hereby levied, assessed and shall be collected from every person a tax for the privilege of using, storing or consuming, within this state, any tangible personal property or specified digital product possession of which is acquired in any manner.
(a) The use tax hereby imposed and levied shall be collected at the same rates as imposed under Section 27-65-20, and Sections 27-65-17, 27-65-18, 27-65-19, 27-65-25 and 27-65-26 computed on the purchase or sales price, or value, as defined in this article.
(b) It shall be the duty of the tax collectors of the several counties, or the State Tax Commissioner, as the case may be, to collect, remit and account for the tax on the use of all vehicles licensed or registered by the State of Mississippi for the first time, except when the Mississippi use tax was collected by an authorized out-of-state dealer at the time of purchase, or when the use thereof was exempt by Section 27-67-7. The tax collector or the State Tax Commissioner shall give to the person registering the vehicle a receipt in a form prescribed and furnished by the State Tax Commission for the amount of tax collected.
The tax collector or State Tax Commissioner is expressly prohibited from issuing a license tag to any applicant without collecting the tax levied by this article, unless positive proof is filed, together with the application for the license tag, that the Mississippi tax has been paid, or that the sale was exempt by Section 27-67-7.
Persons not engaging and continuing in business so as to be registered for payment of sales and/or use tax may pay use tax due on the first use of boats, airplanes, equipment or other tangible personal property and specified digital products to county tax collectors who are hereby authorized to accept such payments on behalf of the commissioner. Receipts for all such payments shall be given to taxpayers in a form prescribed and furnished by the State Tax Commission.
County tax collectors and the State Tax Commissioner shall be liable for the tax they are required hereby to collect, and taxes which are in fact collected under authority of this section; and failure to properly collect or maintain proper records shall not relieve them of liability for payment to the commissioner. Deficiencies in collection or payment shall be assessed against the tax collector or State Tax Commissioner in the same manner and subject to the same penalties and provisions for appeal as are deficiencies assessed against taxpayers.
A dealer authorized to collect and remit the tax to the State Tax Commission shall give to the purchaser a receipt for the payment of the tax, in a form prescribed and furnished by the commissioner, which shall serve as proof of payment to the tax collector of the county in which the license is to be issued.
Each tax collector of the several counties shall, on or before the twentieth day of each month, file a report with and pay to the commissioner all funds collected under the provisions of this article, less a commission of five percent (5%) which shall be retained by the tax collector as a commission for collecting such tax and be deposited in the county general fund. The report required to be filed shall cover all collections made during the calendar month next preceding the date on which the report is due and filed.
Any error in the report and remittance to the commissioner may be adjusted on a subsequent report. If the error was in the collection by the tax collector, it shall be adjusted through the tax collector with the taxpayer before credit is allowed by the commissioner.
All information relating to the collection of use tax by tax collectors and such records as the commissioner may require shall be preserved in the tax collector's office for a period of three (3) years for audit by the commissioner.
SECTION 5. Section 27-65-93, Mississippi Code of 1972, is amended as follows:
27-65-93. (1) The commissioner shall, from time to time, promulgate rules and regulations, not inconsistent with the provisions of the sales tax law, for making returns and for the ascertainment, assessment and collection of the tax imposed by the sales tax law as he may deem necessary to enforce its provisions; and, upon request, he shall furnish any taxpayer with a copy of the rules and regulations.
(2) All forms, necessary for the enforcement of the sales tax law, shall be prescribed, printed and furnished by the commissioner.
(3) The commissioner may adopt rules and regulations providing for the issuance of permits to manufacturers, utilities, construction contractors, companies receiving bond financing through the Mississippi Business Finance Corporation or the Mississippi Development Authority, and other taxpayers as determined by the commissioner to purchase tangible personal property taxed under Section 27-65-17, items taxed under Section 27-65-18, items taxed under Section 27-65-19, services taxed under Section 27-65-23 and items taxed under Section 27-65-26 without the payment to the vendor of the tax imposed by the sales and use tax laws, and providing for persons to report and pay the tax directly to the commissioner in instances where the commissioner determines that these provisions will facilitate and expedite the collection of the tax at the proper rates which may be due on purchases by the permittee. Under the provisions of this chapter, the vendor is relieved of collecting and remitting the taxes specified hereunder and the person holding the permit shall become liable for such taxes instead of the seller. The full enforcement provisions of the sales tax law shall apply in the collection of the tax from the permittee.
SECTION 6. Section 27-65-105, Mississippi Code of 1972, is amended as follows:
27-65-105. The exemption from the provisions of this chapter which are of a governmental nature or which are more properly classified as governmental exemptions than any other exemption classification of this chapter shall be confined to those persons or property exempted by this section or by provisions of the Constitutions of the United States or the State of Mississippi. No governmental exemption as now provided by any other section shall be valid as against the tax herein levied. Any subsequent governmental exemption from the tax levied hereunder shall be provided by amendment to this section.
No exemption provided in this section shall apply to taxes levied by Section 27-65-15 or 27-65-21, Mississippi Code of 1972, except as provided by subsection (f) of this section.
The tax levied by this chapter shall not apply to the following:
(a) Sales of property, labor, services or products taxable under Sections 27-65-17, 27-65-19, 27-65-23 and 27-19-26, when sold to and billed directly to and payment therefor is made directly by the United States government, the State of Mississippi and its departments, institutions, counties and municipalities or departments or school districts of said counties and municipalities.
The exemption from the tax imposed under this chapter shall not apply to sales of tangible personal property or specified digital products, labor or services to contractors purchasing in the performance of contracts with the United States, the State of Mississippi, counties and municipalities.
(b) Sales to schools, when such schools are supported wholly or in part by funds provided by the State of Mississippi, provided that this exemption does not apply to sales of property which is not to be used in the ordinary operation of the school, or which is to be resold to the students or the public.
(c) Amounts received from the sale of school textbooks to students.
(d) Sales to the Mississippi Band of Choctaw Indians, but not to Indians individually.
(e) Sales of fire fighting equipment to governmental fire departments or volunteer fire departments for their use.
(f) Sales of any gas from any project, as defined in the Municipal Gas Authority of Mississippi Law, to any municipality shall not be subject to sales, use or other tax.
(g) Sales of home medical equipment and home medical supplies listed as eligible for payment under Title XVIII of the Social Security Act or under the state plan for medical assistance under Title XIX of the Social Security Act, prosthetics, orthotics, hearing aids, hearing devices, prescription eyeglasses, oxygen and oxygen equipment, when ordered or prescribed by a licensed physician for medical purposes of a patient, and when payment for such equipment or supplies, or both, is made under the provisions of the Medicare or Medicaid program. This exemption shall only apply to the portion of the sales price of such equipment or supplies, or both, paid for under the provisions of the Medicare or Medicaid program.
(h) Sales to regional educational service agencies established under Section 37-7-345.
SECTION 7. Section 27-67-4, Mississippi Code of 1972, is amended as follows:
27-67-4. (1) For purposes of this article, a "mail order sale" is a sale of tangible personal property or specified digital products, ordered by mail or other means as described in subsection (2)(e), to a purchaser who is in this state at the time the order is remitted, from a person who receives the order in another state of the United States, or in a commonwealth, territory or other area under the jurisdiction of the United States, and which person transports the property or products or causes the property or products to be transported, whether or not by mail, from any jurisdiction of the United States, including this state, to the purchaser in this state who ordered the property or products or to another person in this state for whom the purchaser ordered the property. For purposes of this definition, it will be presumed that every purchaser resident in this state who remits an order shall have been in this state at the time the order was remitted.
(2) Every person doing business in this state who makes a mail order sale is subject to the power of this state to levy and collect the tax imposed by this article when:
(a) The person is a corporation doing business under the laws of this state or a person domiciled in, a resident of, or a citizen of, this state;
(b) The person maintains retail establishments or offices in this state, whether the mail order sales thus subject to taxation by this state result from or are related in any other way to the activities of such establishments or offices;
(c) The person has agents in this state who solicit business or transact business on his behalf, whether the mail order sales thus subject to taxation by this state result from or are related in any other way to such solicitation or transaction of business;
(d) The property was delivered in this state in fulfillment of a sales contract that was entered into in this state, in accordance with applicable conflict of laws rules, when a purchaser in this state accepted an offer by ordering the property;
(e) The person, by purposefully or systematically exploiting the consumer market provided by this state by any media-assisted, media-facilitated or media-solicited means, including, but not limited to, direct mail advertising, unsolicited distribution of catalogues, computer-assisted shopping, television, radio or other electronic media, or magazine or newspaper advertisements or other media, creates nexus with this state;
(f) Through compact or reciprocity with another jurisdiction of the United States, that jurisdiction uses its taxing power and its jurisdiction over the retailer in support of this state's taxing power; or
(g) The person consents, expressly or by implication, to the imposition of the tax imposed by this part.
(3) Every person engaged in the business of making mail order sales is subject to the requirements of this article for cooperation in collection of taxes and in administration of this article, except that no fee shall be imposed upon such person for carrying out any required activity.
(4) The tax required under this section to be collected, and any amount unreturned to a purchaser that is not tax but was collected from the purchaser under the representation that it was tax, constitute funds of the State of Mississippi from the moment of collection.
SECTION 8. Section 27-67-7, Mississippi Code of 1972, is amended as follows:
27-67-7. The tax levied by this article shall not be collected in the following instances:
(a) On the use, storage or consumption of any tangible personal property or specified digital products if the sale thereof has already been included in the measure of this tax or the tax imposed by Section 27-65-20 or Section 27-65-17, 27-65-19, 27-65-25 or 27-65-26, or has already been included in the measure of a sales tax imposed by another state in which the property or products were sold or use tax imposed by some other state in which the property was used. If the rate of sales or use tax paid another state by the person using the property or products in Mississippi is not equal to or greater than the rate imposed by this article, then the user or purchaser shall apply the difference in these rates to the purchase price or value of the property or products and pay to the commissioner the amount of tax thus computed. Persons using business property or products in this state which has been used by them in other states shall be entitled to a credit for sales and/or use tax paid to other states equal to the aggregate of all such state rates multiplied by the value of the property or products at the time of importation into this state. Persons using business property or products in this state which were acquired from another person who used it in other states shall be entitled to a credit equal to the applicable rate in the state of last prior use multiplied by the value of the property or products at the time of importation into this state. However, credit for use tax paid to another state shall not apply on the purchase price of tangible personal property or specified digital products that have been only stored or warehoused in the other state and the first use of the property or products occurs in Mississippi. Provided further, that credit for sales or use tax paid to another state shall not apply on the purchase price or value of automobiles, trucks, truck-tractors, semitrailers, trailers, boats, travel trailers, motorcycles and all-terrain cycles imported and first used in Mississippi.
Credit for sales or use tax paid to another state as provided in this paragraph (a) shall be evidenced by an invoice clearly and correctly showing the amount of the tax as a separate item, and no credit shall be allowed otherwise.
(b) On the use, storage or consumption of tangible personal property or specified digital products to the extent that sales of similar property or products in Mississippi are either excluded or specifically exempt from sales tax or are taxed at the wholesale rate.
This exemption shall be confined to the use of property or products the sale of which is an itemized exemption in the Mississippi Sales Tax Law, or to use by persons who are listed in the Mississippi Sales Tax Law as being exempt from sales tax.
(c) On the use, storage or consumption of tangible personal property or specified digital products brought into this state by a nonresident for his or her use or enjoyment while temporarily within the state, but not including tangible personal property or specified digital products brought in for use in connection with a business activity. This exemption shall not apply to property or products which remain situated in this state for the repeated use, storage or consumption by out-of-state visitors, or which is acquired by visitors and first used in this state.
(d) On the use of a motor vehicle for which a registration is required by the motor vehicle law, when such motor vehicle was purchased by a natural person for his personal or family use while such person was a bona fide resident of another state and who thereafter became a resident of this state, but not to include a motor vehicle which is transferred by the owner for commercial use or for use by another person within this state.
(e) On the use of personal and household effects by a natural person acquired while the person was a bona fide resident of another state, and who thereafter became a resident of this state.
(f) On the use or rental of motion picture film, video-audio tapes, phonograph records or specified digital products for exhibition either by a person paying Mississippi sales tax on gross income from admissions for the exhibitions or by a person operating a television or radio broadcasting station.
(g) On any vehicle purchased in another state for use outside of this state by a Mississippi citizen serving in the Armed Forces and stationed in another state who elects to license the vehicle in Mississippi.
(h) On the cost or value and on the use, storage and consumption of rail rolling stock and component parts thereof.
(i) On the use, storage or consumption of literature, video tapes, photographic slides or specified digital products used by religious institutions for the propagation of their creeds or for carrying on their customary nonprofit religious activities, and on the use of any tangible personal property or specified digital products purchased and first used in another state by religious institutions for the propagation of their creeds or for carrying on their customary nonprofit religious activities. "Religious institution," for the purpose of this exemption, means any religious institution granted an exemption under 26 USCS Section 501(c)(3). Any exemption under this paragraph obtained by fraud, misstatement or misrepresentation shall be cancelled by the State Tax Commission, and the person committing the fraud, misstatement or misrepresentation shall be liable for prosecution for fraud on the assessment, and, on conviction, shall be fined not less than One Thousand Dollars ($1,000.00), or punished by imprisonment in the State Penitentiary for a term not to exceed five (5) years, or both, within the discretion of the court.
(j) The tax on the cost or value of farm machinery used in the harvesting of agricultural products shall be limited to the ratio of use within this state to the life of the property.
(k) On the use, storage or consumption, between July 1, 1993, and June 30, 1994, of machinery and equipment to corporations qualified as tax-exempt organizations under Section 501(c)(4) of the Internal Revenue Code and established in response to the Federal Oil Pollution Act of 1990 to provide a private capability to respond to major oil spills. For purposes of this exemption, "machinery and equipment" means property with a useful life of at least three (3) years which is used primarily in the operations of the Marine Oil Spill Response Corporation and shall include, without limitation, vessels, barges, booms and skimmers. This paragraph shall stand repealed on July 1, 1995.
(l) On the use of machinery and equipment; special tooling such as dies, molds, jigs and similar items treated as special tooling for federal income tax purposes; or repair parts therefor or replacements thereof; or repair services thereon; by a taxpayer other than the manufacturer when the manufacturer still holds title to the items and the items are purchased by the manufacturer as a part of a project as defined in Section 57-75-5(f)(iv)1, Section 57-75-5(f)(xxi) or Section 57-75-5(f)(xxii).
(m) On the use, storage or consumption of utilities purchased by a manufacturer described in Section 27-65-101(x).
(n) On the use, storage or consumption of utilities purchased by an enterprise described in Section 27-65-101(cc).
(o) On the use, storage or consumption of jet aircraft engines that are temporarily located within the State of Mississippi and are brought into the state for research and/or testing purposes at a jet aircraft engine research and testing facility.
SECTION 9. Section 27-67-9, Mississippi Code of 1972, is amended as follows:
27-67-9. Every person selling tangible personal property or specified digital products for use, storage or consumption, or rendering services in this state to consumers, shall register and furnish any information relating to his business activities as the commissioner may require.
SECTION 10. Section 27-67-11, Mississippi Code of 1972, is amended as follows:
27-67-11. (1) Every person maintaining a place of business, or doing business, in this state, shall collect the tax imposed by this article from the purchaser and remit the tax to the commissioner as hereinafter provided. Failure to collect the tax from the purchaser shall not relieve the seller of liability for payment of the tax.
(2) Any person selling tangible personal property or specified digital products that does not maintain a place of business in this state may be authorized by the commissioner to collect the tax from customers in Mississippi who are liable for its payment, and such person shall remit the tax to the commissioner in the same manner and subject to the same requirements as a person maintaining a place of business or doing business within this state. Such authority may be cancelled at any time when, in the judgment of the commissioner, the tax can be collected more effectively from the purchaser in this state. When the tax has been collected from the purchaser, the seller shall be liable for payment of the tax to the commissioner.
(3) Every person required or authorized to collect the tax shall add to the sales price of tangible personal property, services or specified digital products the amount of the tax imposed on purchaser for the use, storage, or consumption thereof, and, when so added, the tax shall be a debt from the purchaser to the seller until paid, and shall be collectible at law in the same manner as other debts. It shall be unlawful for any person to advertise, hold out, or state to the public or to any customer that the tax herein imposed will be assumed or absorbed by the seller or that any part thereof will be refunded. Said tax shall be stated separately from the sales price on the sales invoice and shown separately on the seller's records. The purchaser shall pay the tax to the seller as trustee for and on account of the state.
SECTION 11. Section 27-67-13, Mississippi Code of 1972, is amended as follows:
27-67-13. Any person who uses, stores, or consumes any tangible personal property or specified digital products upon which a tax is herein imposed, or who has received a service which is taxable, upon which the tax has not been paid to the commissioner or to a seller authorized by the commissioner to collect the tax, shall be liable therefor, and shall file returns and pay the tax due the state to the commissioner as provided by this article.
SECTION 12. Section 27-67-15, Mississippi Code of 1972, is amended as follows:
27-67-15. The commissioner may provide for the issuance of permits to manufacturers or public service corporations to pay all taxes levied under this article on the purchase of tangible personal property, services and specified digital products directly to the commissioner, in lieu of payment of the use tax to the vendor, in instances where the commissioner determines that such provisions will facilitate and expedite the collection of the tax at the proper rates which may be due on such purchases by said persons.
SECTION 13. Section 27-67-17, Mississippi Code of 1972, is amended as follows:
27-67-17. (1) Except as otherwise provided in this section, the commissioner shall collect the tax imposed by this article, and every person subject to its provisions shall remit to the commissioner, on or before the twentieth day of each month, the amount of tax due by such person for the preceding calendar month. Returns and payments placed in the mail must be postmarked by the due date in order to be timely filed, except that when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed. Every taxpayer shall file a return with his remittance, which return shall be prescribed by the commissioner and shall show for the calendar month preceding the tax payment date, the total sale or purchase price, or value of tangible personal property or specified digital products sold, used, stored or consumed by him for benefit received or service performed, and such other information as the commissioner may deem pertinent and necessary for determining the amount of tax due thereunder.
(2) The commissioner, in his discretion, may authorize in writing the filing of returns and the payment of tax on a quarterly basis by any person required or authorized to pay the tax imposed, such authority to be subject to revocation for good cause by the commissioner.
(3) In instances where it is impractical to file returns and pay the tax monthly or quarterly, the commissioner may authorize the filing of semiannual or annual returns.
(4) A taxpayer required to collect use taxes under this article and having an average monthly use tax liability of at least Fifty Thousand Dollars ($50,000.00) for the preceding calendar year shall pay to the State Tax Commission on or before June 25, 2010, and on or before the twenty-fifth day of June of each succeeding year thereafter, an amount equal to at least seventy-five percent (75%) of such taxpayer's estimated use tax liability for the month of June of the current calendar year, or an amount equal to at least seventy-five percent (75%) of the taxpayer's use tax liability for the month of June of the preceding calendar year. Payments required to be made under this subsection must be received by the State Tax Commission no later than June 25 in order to be considered timely made. A taxpayer that fails to comply with the requirements of this subsection may be assessed a penalty in an amount equal to ten percent (10%) of the difference between any amount the taxpayer pays pursuant to this subsection and the taxpayer's actual use tax liability for the month of June for which the estimated payment was required to be made. Payments made by a taxpayer under this subsection shall not be considered to be collected for the purposes of any use tax diversions required by law until the taxpayer files a return for the actual use taxes collected during the month of June. This subsection shall not apply to any agency, department or instrumentality of the United States, any agency, department, institution, instrumentality or political subdivision of the State of Mississippi, or any agency, department, institution or instrumentality of any political subdivision of the State of Mississippi.
(5) The commissioner, in his discretion, may authorize the computation of the tax on the basis of a formula in lieu of direct accounting of specific properties in instances where such method will expedite, simplify or provide a more equitable means of determining liability under this article. All formulas shall be subject to revocation for good cause by the commissioner.
SECTION 14. The gross income of businesses engaging or continuing in the business of providing telecommunications services and other similar services, including, but not limited to, Internet services, Internet protocol television (IPTV) services, satellite television services and Mobile TV broadcasting services, shall be exempt from the special sales tax imposed in Section 1 of Senate Bill No. 3268, 2009 Regular Session.
SECTION 15. This act shall take effect and be in force from and after July 1, 2009.