Session of 1999
         
SENATE BILL No. 377
         
By Special Committee on Assessment and Taxation
         
12-15
         

  9             AN  ACT relating to sales taxation; concerning treatment of certain con-
10             tractor sales and purchases; amending K.S.A. 1999 Supp. 79-3602 and
11             79-3603 and repealing the existing sections.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1999 Supp. 79-3602 is hereby amended to read as
15       follows: 79-3602. (a) "Persons" means any individual, firm, copartnership,
16       joint adventure, association, corporation, estate or trust, receiver or trus-
17       tee, or any group or combination acting as a unit, and the plural as well
18       as the singular number; and shall specifically mean any city or other po-
19       litical subdivision of the state of Kansas engaging in a business or provid-
20       ing a service specifically taxable under the provisions of this act.
21             (b) "Director" means the state director of taxation.
22             (c) "Sale" or "sales" means the exchange of tangible personal prop-
23       erty, as well as the sale thereof for money, and every transaction, condi-
24       tional or otherwise, for a consideration, constituting a sale, including the
25       sale or furnishing of electrical energy, gas, water, services or entertain-
26       ment taxable under the terms of this act and including, except as provided
27       in the following provision, the sale of the use of tangible personal property
28       by way of a lease, license to use or the rental thereof regardless of the
29       method by which the title, possession or right to use the tangible personal
30       property is transferred. The term "sale" or "sales" shall not mean the sale
31       of the use of any tangible personal property used as a dwelling by way of
32       a lease or rental thereof for a term of more than 28 consecutive days.
33             (d) "Retailer" means a person regularly engaged in the business of
34       selling tangible personal property at retail or furnishing electrical energy,
35       gas, water, services or entertainment, and selling only to the user or con-
36       sumer and not for resale.
37             (e) "Retail sale" or "sale at retail" means all sales made within the
38       state of tangible personal property or electrical energy, gas, water, services
39       or entertainment for use or consumption and not for resale.
40             (f) "Tangible personal property" means corporeal personal property.
41       Such term shall include: (1) Any computer software program which is not
42       a custom computer software program, as described by subsection (s) of
43       K.S.A. 79-3603, and amendments thereto; and (2) any prepaid telephone


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  1       calling card or prepaid authorization number, or recharge of such card
  2       or number, as described by subsection (b) of K.S.A. 79-3603, and amend-
  3       ments thereto.
  4             (g) "Selling price" means the total cost to the consumer exclusive of
  5       discounts allowed and credited, but including freight and transportation
  6       charges from retailer to consumer.
  7             (h) "Gross receipts" means the total selling price or the amount re-
  8       ceived as defined in this act, in money, credits, property or other consid-
  9       eration valued in money from sales at retail within this state; and em-
10       braced within the provisions of this act. The taxpayer, may take credit in
11       the report of gross receipts for: (1) An amount equal to the selling price
12       of property returned by the purchaser when the full sale price thereof,
13       including the tax collected, is refunded in cash or by credit; and (2) an
14       amount equal to the allowance given for the trade-in of property.
15             (i) "Taxpayer" means any person obligated to account to the director
16       for taxes collected under the terms of this act.
17             (j) "Isolated or occasional sale" means the nonrecurring sale of tan-
18       gible personal property, or services taxable hereunder by a person not
19       engaged at the time of such sale in the business of selling such property
20       or services. Any religious organization which makes a nonrecurring sale
21       of tangible personal property acquired for the purpose of resale shall be
22       deemed to be not engaged at the time of such sale in the business of
23       selling such property. Such term shall include: (1) Any sale by a bank,
24       savings and loan institution, credit union or any finance company licensed
25       under the provisions of the Kansas uniform consumer credit code of tan-
26       gible personal property which has been repossessed by any such entity;
27       and (2) any sale of tangible personal property made by an auctioneer or
28       agent on behalf of not more than two principals or households if such
29       sale is nonrecurring and any such principal or household is not engaged
30       at the time of such sale in the business of selling tangible personal
31       property.
32             (k) "Service" means those services described in and taxed under the
33       provisions of K.S.A. 79-3603 and amendments thereto.
34             (l) "Ingredient or component part" means tangible personal property
35       which is necessary or essential to, and which is actually used in and be-
36       comes an integral and material part of tangible personal property or serv-
37       ices produced, manufactured or compounded for sale by the producer,
38       manufacturer or compounder in its regular course of business. The fol-
39       lowing items of tangible personal property are hereby declared to be
40       ingredients or component parts, but the listing of such property shall not
41       be deemed to be exclusive nor shall such listing be construed to be a
42       restriction upon, or an indication of, the type or types of property to be
43       included within the definition of "ingredient or component part" as


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  1       herein set forth:
  2             (1) Containers, labels and shipping cases used in the distribution of
  3       property produced, manufactured or compounded for sale which are not
  4       to be returned to the producer, manufacturer or compounder for reuse.
  5             (2) Containers, labels, shipping cases, paper bags, drinking straws,
  6       paper plates, paper cups, twine and wrapping paper used in the distri-
  7       bution and sale of property taxable under the provisions of this act by
  8       wholesalers and retailers and which is not to be returned to such whole-
  9       saler or retailer for reuse.
10             (3) Seeds and seedlings for the production of plants and plant prod-
11       ucts produced for resale.
12             (4) Paper and ink used in the publication of newspapers.
13             (5) Fertilizer used in the production of plants and plant products
14       produced for resale.
15             (6) Feed for animals, fowl and aquatic plants and animals, the primary
16       purpose of which is use in agriculture or aquaculture, as defined in K.S.A.
17       47-1901, and amendments thereto, the production of food for human
18       consumption, the production of animal, dairy, poultry or aquatic plant
19       and animal products, fiber, fur, or the production of offspring for use for
20       any such purpose or purposes.
21             (m) "Property which is consumed" means tangible personal property
22       which is essential or necessary to and which is used in the actual process
23       of and consumed, depleted or dissipated within one year in (1) the pro-
24       duction, manufacture, processing, mining, drilling, refining or compound-
25       ing of tangible personal property, (2) the providing of services, (3) the
26       irrigation of crops, for sale in the regular course of business, or (4) the
27       storage or processing of grain by a public grain warehouse or other grain
28       storage facility, and which is not reusable for such purpose. The following
29       is a listing of tangible personal property, included by way of illustration
30       but not of limitation, which qualifies as property which is consumed:
31             (A) Insecticides, herbicides, germicides, pesticides, fungicides, fu-
32       migants, antibiotics, biologicals, pharmaceuticals, vitamins and chemicals
33       for use in commercial or agricultural production, processing or storage of
34       fruit, vegetables, feeds, seeds, grains, animals or animal products whether
35       fed, injected, applied, combined with or otherwise used;
36             (B) electricity, gas and water; and
37             (C) petroleum products, lubricants, chemicals, solvents, reagents and
38       catalysts.
39             (n) "Political subdivision" means any municipality, agency or subdi-
40       vision of the state which is, or shall hereafter be, authorized to levy taxes
41       upon tangible property within the state or which certifies a levy to a
42       municipality, agency or subdivision of the state which is, or shall hereafter
43       be, authorized to levy taxes upon tangible property within the state. Such


4

  1       term also shall include any public building commission, housing, airport,
  2       port, metropolitan transit or similar authority established pursuant to law.
  3             (o) "Municipal corporation" means any city incorporated under the
  4       laws of Kansas.
  5             (p) "Quasi-municipal corporation" means any county, township,
  6       school district, drainage district or any other governmental subdivision in
  7       the state of Kansas having authority to receive or hold moneys or funds.
  8             (q) "Nonprofit blood bank" means any nonprofit place, organization,
  9       institution or establishment that is operated wholly or in part for the
10       purpose of obtaining, storing, processing, preparing for transfusing, fur-
11       nishing, donating or distributing human blood or parts or fractions of
12       single blood units or products derived from single blood units, whether
13       or not any remuneration is paid therefor, or whether such procedures are
14       done for direct therapeutic use or for storage for future use of such
15       products.
16             (r) "Contractor, subcontractor or repairman" means a person who
17       agrees to furnish and install tangible personal property or install tangible
18       personal property at a specified price. A person who maintains an inven-
19       tory of tangible personal property which enables such person to furnish
20       and install the tangible personal property or install the tangible personal
21       property shall not be deemed a contractor, subcontractor or repairman
22       but shall be deemed a retailer.
23             (s) "Educational institution" means any nonprofit school, college and
24       university that offers education at a level above the twelfth grade, and
25       conducts regular classes and courses of study required for accreditation
26       by, or membership in, the North Central Association of Colleges and
27       Schools, the state board of education, or that otherwise qualify as an
28       "educational institution," as defined by K.S.A. 74-50,103, and amend-
29       ments thereto. Such phrase shall include: (1) A group of educational in-
30       stitutions that operates exclusively for an educational purpose; (2) non-
31       profit endowment associations and foundations organized and operated
32       exclusively to receive, hold, invest and administer moneys and property
33       as a permanent fund for the support and sole benefit of an educational
34       institution; (3) nonprofit trusts, foundations and other entities organized
35       and operated principally to hold and own receipts from intercollegiate
36       sporting events and to disburse such receipts, as well as grants and gifts,
37       in the interest of collegiate and intercollegiate athletic programs for the
38       support and sole benefit of an educational institution; and (4) nonprofit
39       trusts, foundations and other entities organized and operated for the pri-
40       mary purpose of encouraging, fostering and conducting scholarly inves-
41       tigations and industrial and other types of research for the support and
42       sole benefit of an educational institution.
43             Sec.  2. K.S.A. 1999 Supp. 79-3603 is hereby amended to read as


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  1       follows: 79-3603. For the privilege of engaging in the business of selling
  2       tangible personal property at retail in this state or rendering or furnishing
  3       any of the services taxable under this act, there is hereby levied and there
  4       shall be collected and paid a tax at the rate of 4.9% and, within a rede-
  5       velopment district established pursuant to K.S.A. 74-8921, and amend-
  6       ments thereto, there is hereby levied and there shall be collected and
  7       paid an additional tax at the rate of 2% until the earlier of the date the
  8       bonds issued to finance or refinance the redevelopment project have been
  9       paid in full or the final scheduled maturity of the first series of bonds
10       issued to finance any part of the project upon:
11             (a) The gross receipts received from the sale of tangible personal
12       property at retail within this state;
13             (b)  (1) the gross receipts from intrastate telephone or telegraph serv-
14       ices and (2) the gross receipts received from the sale of interstate tele-
15       phone or telegraph services, which (A) originate within this state and
16       terminate outside the state and are billed to a customer's telephone num-
17       ber or account in this state; or (B) originate outside this state and ter-
18       minate within this state and are billed to a customer's telephone number
19       or account in this state except that the sale of interstate telephone or
20       telegraph service does not include: (A) Any interstate incoming or out-
21       going wide area telephone service or wide area transmission type service
22       which entitles the subscriber to make or receive an unlimited number of
23       communications to or from persons having telephone service in a speci-
24       fied area which is outside the state in which the station provided this
25       service is located; (B) any interstate private communications service to
26       the persons contracting for the receipt of that service that entitles the
27       purchaser to exclusive or priority use of a communications channel or
28       group of channels between exchanges; (C) any value-added nonvoice
29       service in which computer processing applications are used to act on the
30       form, content, code or protocol of the information to be transmitted; (D)
31       any telecommunication service to a provider of telecommunication serv-
32       ices which will be used to render telecommunications services, including
33       carrier access services; or (E) any service or transaction defined in this
34       section among entities classified as members of an affiliated group as
35       provided by federal law (U.S.C. Section 1504). For the purposes of this
36       subsection the term gross receipts does not include purchases of tele-
37       phone, telegraph or telecommunications using a prepaid telephone call-
38       ing card or pre-paid authorization number. As used in this subsection, a
39       pre-paid telephone calling card or pre-paid authorization number means
40       the right to exclusively make telephone calls, paid for in advance, with
41       the prepaid value measured in minutes or other time units, that enables
42       the origination of calls using an access number or authorization code or
43       both, whether manually or electronically dialed;


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  1             (c) the gross receipts from the sale or furnishing of gas, water, elec-
  2       tricity and heat, which sale is not otherwise exempt from taxation under
  3       the provisions of this act, and whether furnished by municipally or pri-
  4       vately owned utilities;
  5             (d) the gross receipts from the sale of meals or drinks furnished at
  6       any private club, drinking establishment, catered event, restaurant, eating
  7       house, dining car, hotel, drugstore or other place where meals or drinks
  8       are regularly sold to the public;
  9             (e) the gross receipts from the sale of admissions to any place pro-
10       viding amusement, entertainment or recreation services including admis-
11       sions to state, county, district and local fairs, but such tax shall not be
12       levied and collected upon the gross receipts received from sales of ad-
13       missions to any cultural and historical event which occurs triennially;
14             (f) the gross receipts from the operation of any coin-operated device
15       dispensing or providing tangible personal property, amusement or other
16       services except laundry services, whether automatic or manually operated;
17             (g) the gross receipts from the service of renting of rooms by hotels,
18       as defined by K.S.A. 36-501 and amendments thereto, or by accommo-
19       dation brokers, as defined by K.S.A. 12-1692, and amendments thereto;
20             (h) the gross receipts from the service of renting or leasing of tangible
21       personal property except such tax shall not apply to the renting or leasing
22       of machinery, equipment or other personal property owned by a city and
23       purchased from the proceeds of industrial revenue bonds issued prior to
24       July 1, 1973, in accordance with the provisions of K.S.A. 12-1740 through
25       12-1749, and amendments thereto, and any city or lessee renting or leas-
26       ing such machinery, equipment or other personal property purchased
27       with the proceeds of such bonds who shall have paid a tax under the
28       provisions of this section upon sales made prior to July 1, 1973, shall be
29       entitled to a refund from the sales tax refund fund of all taxes paid
30       thereon;
31             (i) the gross receipts from the rendering of dry cleaning, pressing,
32       dyeing and laundry services except laundry services rendered through a
33       coin-operated device whether automatic or manually operated;
34             (j) the gross receipts from the rendering of the services of washing
35       and washing and waxing of vehicles;
36             (k) the gross receipts from cable, community antennae and other sub-
37       scriber radio and television services;
38             (l)  (1) except as otherwise provided by paragraph (2), the gross re-
39       ceipts received from the sales of tangible personal property to all con-
40       tractors, subcontractors or repairmen of materials and supplies for use by
41       them in erecting structures for others, or building on, or otherwise im-
42       proving, altering, or repairing real or personal property of others;.
43             (2) Any such contractor, subcontractor or repairman who maintains


7

  1       an inventory of such property both for sale at retail and for use by them
  2       for the purposes described by paragraph (1) shall be deemed a retailer
  3       with respect to purchases for and sales from such inventory, except that
  4       the gross receipts received from any such sale, other than a sale at retail,
  5       shall be equal to the total purchase price paid for such property and the
  6       tax imposed thereon shall be paid by the deemed retailer;
  7             (m) the gross receipts received from fees and charges by public and
  8       private clubs, drinking establishments, organizations and businesses for
  9       participation in sports, games and other recreational activities, but such
10       tax shall not be levied and collected upon the gross receipts received from:
11       (1) Fees and charges by any political subdivision, by any organization
12       exempt from property taxation pursuant to paragraph Ninth of K.S.A. 79-
13       201, and amendments thereto, or by any youth recreation organization
14       exclusively providing services to persons 18 years of age or younger which
15       is exempt from federal income taxation pursuant to section 501(c)(3) of
16       the federal internal revenue code of 1986, for participation in sports,
17       games and other recreational activities; and (2) entry fees and charges for
18       participation in a special event or tournament sanctioned by a national
19       sporting association to which spectators are charged an admission which
20       is taxable pursuant to subsection (e);
21             (n) the gross receipts received from dues charged by public and pri-
22       vate clubs, drinking establishments, organizations and businesses, pay-
23       ment of which entitles a member to the use of facilities for recreation or
24       entertainment, but such tax shall not be levied and collected upon the
25       gross receipts received from: (1) Dues charged by any organization ex-
26       empt from property taxation pursuant to paragraphs Eighth and Ninth of
27       K.S.A. 79-201, and amendments thereto; and (2) sales of memberships
28       in a nonprofit organization which is exempt from federal income taxation
29       pursuant to section 501 (c)(3) of the federal internal revenue code of
30       1986, and whose purpose is to support the operation of a nonprofit zoo;
31             (o) the gross receipts received from the isolated or occasional sale of
32       motor vehicles or trailers but not including: (1) The transfer of motor
33       vehicles or trailers by a person to a corporation solely in exchange for
34       stock securities in such corporation; or (2) the transfer of motor vehicles
35       or trailers by one corporation to another when all of the assets of such
36       corporation are transferred to such other corporation; or (3) the sale of
37       motor vehicles or trailers which are subject to taxation pursuant to the
38       provisions of K.S.A. 79-5101 et seq., and amendments thereto, by an
39       immediate family member to another immediate family member. For the
40       purposes of clause (3), immediate family member means lineal ascendants
41       or descendants, and their spouses. In determining the base for computing
42       the tax on such isolated or occasional sale, the fair market value of any
43       motor vehicle or trailer traded in by the purchaser to the seller may be


8

  1       deducted from the selling price;
  2             (p) the gross receipts received for the service of installing or applying
  3       tangible personal property which when installed or applied is not being
  4       held for sale in the regular course of business, and whether or not such
  5       tangible personal property when installed or applied remains tangible
  6       personal property or becomes a part of real estate, except that no tax shall
  7       be imposed upon the service of installing or applying tangible personal
  8       property in connection with the original construction of a building or
  9       facility, the original construction, reconstruction, restoration, remodeling,
10       renovation, repair or replacement of a residence or the construction, re-
11       construction, restoration, replacement or repair of a bridge or highway.
12             For the purposes of this subsection:
13             (1) "Original construction" shall mean the first or initial construction
14       of a new building or facility. The term "original construction" shall include
15       the addition of an entire room or floor to any existing building or facility,
16       the completion of any unfinished portion of any existing building or fa-
17       cility and the restoration, reconstruction or replacement of a building or
18       facility damaged or destroyed by fire, flood, tornado, lightning, explosion
19       or earthquake, but such term, except with regard to a residence, shall not
20       include replacement, remodeling, restoration, renovation or reconstruc-
21       tion under any other circumstances;
22             (2) "building" shall mean only those enclosures within which individ-
23       uals customarily are employed, or which are customarily used to house
24       machinery, equipment or other property, and including the land improve-
25       ments immediately surrounding such building;
26             (3) "facility" shall mean a mill, plant, refinery, oil or gas well, water
27       well, feedlot or any conveyance, transmission or distribution line of any
28       cooperative, nonprofit, membership corporation organized under or sub-
29       ject to the provisions of K.S.A. 17-4601 et seq., and amendments thereto,
30       or of any municipal or quasi-municipal corporation, including the land
31       improvements immediately surrounding such facility; and
32             (4) "residence" shall mean only those enclosures within which indi-
33       viduals customarily live;
34             (q) the gross receipts received for the service of repairing, servicing,
35       altering or maintaining tangible personal property, except computer soft-
36       ware described in subsection (s), which when such services are rendered
37       is not being held for sale in the regular course of business, and whether
38       or not any tangible personal property is transferred in connection there-
39       with. The tax imposed by this subsection shall be applicable to the services
40       of repairing, servicing, altering or maintaining an item of tangible personal
41       property which has been and is fastened to, connected with or built into
42       real property;
43             (r) the gross receipts from fees or charges made under service or


9

  1       maintenance agreement contracts for services, charges for the providing
  2       of which are taxable under the provisions of subsection (p) or (q);
  3             (s) the gross receipts received from the sale of computer software,
  4       and the sale of the services of modifying, altering, updating or maintaining
  5       computer software. As used in this subsection, "computer software"
  6       means information and directions loaded into a computer which dictate
  7       different functions to be performed by the computer. Computer software
  8       includes any canned or prewritten program which is held or existing for
  9       general or repeated sale, even if the program was originally developed
10       for a single end user as custom computer software. The sale of computer
11       software or services does not include: (1) The initial sale of any custom
12       computer program which is originally developed for the exclusive use of
13       a single end user; or (2) those services rendered in the modification of
14       computer software when the modification is developed exclusively for a
15       single end user only to the extent of the modification and only to the
16       extent that the actual amount charged for the modification is separately
17       stated on invoices, statements and other billing documents provided to
18       the end user. The services of modification, alteration, updating and main-
19       tenance of computer software shall only include the modification, alter-
20       ation, updating and maintenance of computer software taxable under this
21       subsection whether or not the services are actually provided; and
22             (t) the gross receipts received for telephone answering services, in-
23       cluding mobile phone services, beeper services and other similar services;
24       and
25             (u) the gross receipts received from the sale of prepaid telephone
26       calling cards or pre-paid authorization numbers and the recharge of such
27       cards or numbers. A pre-paid telephone calling card or pre-paid author-
28       ization number means the right to exclusively make telephone calls, paid
29       for in advance, with the prepaid value measured in minutes or other time
30       units, that enables the origination of calls using an access number or
31       authorization code or both, whether manually or electronically dialed. If
32       the sale or recharge of such card or number does not take place at the
33       vendor's place of business, it shall be conclusively determined to take
34       place at the customer's shipping address; if there is no item shipped then
35       it shall be the customer's billing address. 
36       Sec.  3. K.S.A. 1999 Supp. 79-3602 and 79-3603 are hereby repealed.
37        Sec.  4. This act shall take effect and be in force from and after its
38       publication in the statute book.