DEFINITIONS; ADMINISTRATION

 

237-1 Definitions. When used in this chapter, unless otherwise required by the context, the definitions contained in this section and in sections 237-2 to 237-7 shall govern.

"Casual sale" means an occasional or isolated sale or transaction involving:

(1) Tangible personal property by a person who is not required to be licensed under this chapter, or

(2) Tangible personal property which is not ordinarily sold in the business of a person who is regularly engaged in business.

"Comptroller" means the comptroller of the State.

"Legal service plan" or "plan" means a plan in which the cost of the services are paid by a member or by some other person or organization in the member's behalf. A legal service plan is a plan by which legal services are rendered to members identifiable in terms of some common interest. A plan shall provide:

(1) That individual members shall be afforded freedom of choice in the selection of their own attorney or attorneys to provide legal services under the plan; and

(2) For the payment of equal amounts for the cost of services rendered without regard to the identity of the attorney or attorneys selected by the plan member or members. No plan shall otherwise discriminate on the basis of the selection.

"Marketplace facilitator" means any person who sells or assists in the sale of tangible personal property, intangible property, or services on behalf of another seller by:

(1) Providing a forum, whether physical or electronic, in which sellers list or advertise tangible personal property, intangible property, or services for sale; and

(2) Collecting payment from the purchaser, either directly or indirectly through an agreement with a third party.

"Overhead" means continuous or general costs occurring in the normal course of a business, including but not limited to costs for labor, rent, taxes, royalties, interest, discounts paid, insurance, lighting, heating, cooling, accounting, legal fees, equipment and facilities, telephone systems, depreciation, and amortization.

"Penalty" or "penalties", when used in connection with the additions to the tax imposed for delinquency in payment, includes interest as well.

"Person" or "company" includes every individual, partnership, society, unincorporated association, joint adventure, group, hui, joint stock company, corporation, trustee, personal representative, trust estate, decedent's estate, trust, trustee in bankruptcy, or other entity, whether such persons are doing business for themselves or in a fiduciary capacity, and whether the individuals are residents or nonresidents of the State, and whether the corporation or other association is created or organized under the laws of the State or of another jurisdiction. Any person who has in the person's possession, for sale in the State, the property of a nonresident owner, other than as an employee of such owner, shall be deemed the seller of the property, when sold.

"Purchasing agent" means any person who, as an agent and not a seller, for a consideration, is engaged in the State in the business of purchasing for the purchasing agent's principal or principals from an unlicensed seller or sellers property for use by such principals in the State, for example, by forwarding orders for such purchases, in behalf of such principals, it being immaterial whether the purchasing agent is compensated for the purchasing agent's services by the seller or by the purchaser; but the term "purchasing agent" does not include an employee of the purchaser.

"Representative" means any salesperson, commission agent, manufacturer's representative, broker or other person who is authorized or employed by a seller to assist the seller in selling property for use in the State, by procuring orders for the sales or otherwise, and who carries on those activities in the State, it being immaterial whether the activities are regular or intermittent. The term "representative" shall not include:

(1) A manufacturer's representative whose functions are wholly promotional and to act as liaison between an unlicensed seller and a seller or sellers, and that do not include the procuring, soliciting or accepting of orders for property or the making of deliveries of property, or the collecting of payment for deliveries of property, or the keeping of books of account concerning property orders, deliveries or collections transpiring between an unlicensed seller and a seller or sellers; and

(2) A marketplace facilitator.

"Retailing" or "sales at retail" includes the sale of tangible personal property for consumption or use by the purchaser and not for resale, the renting of tangible personal property, and the rendering of services by one engaged in a service business or calling, as defined in section 237-7, to a person who is not purchasing the services for resale. Persons described in this definition are "retailers".

"Sale" or "sales" includes the exchange of properties as well as the sale thereof for money.

"Taxpayer" means any person liable for any tax hereunder.

"Tax year" or "taxable year" means either the calendar year or the taxpayer's fiscal year when the same constitutes the tax period instead of the calendar year pursuant to section 237-11. [L 1935, c 141, pt of 1; am L 1941, c 265, 1(c); RL 1945, 5441, 5442; am L 1947, c 113, 6; RL 1955, 117-1; am L 1957, c 34, 3 and c 152, 1; HRS 237-1; am L 1969, c 46, 1 and c 137, 2; am L 1976, c 156, 9 and c 200, pt of 1; gen ch 1985; am L 1991, c 23, 1; gen ch 1993; am L 1999, c 71, 3; am L 2003, c 135, 1; am L 2012, c 34, 20; am L 2017, c 12, 48; am L 2019, c 2, 2]

 

Attorney General Opinions

 

Tax credits of one partner can be applied against gross income tax due and owing by the partnership. Att. Gen. Op. 64-5.

 

Law Journals and Reviews

 

Rule of Strict Construction in Tax Cases, a Question of Classification or Exemption. 11 HBJ, no. 4, at 98 (1975).

 

Case Notes

 

Corporate administrator doing business for estate is a "person" subject to excise tax. 34 H. 493 (1938).

L 1935, c 141, original legislation, held constitutional as applied to sales to PX's and ships stores. 37 H. 314 (1946), aff'd 174 F.2d 21 (1949). See also 38 H. 188, 204 (1948).

Gross income earned by trustee in bankruptcy is taxable under chapter. 52 H. 56, 469 P.2d 814 (1970).

Nondomiciliary trustee holding property for another found liable for tax. 57 H. 436, 559 P.2d 264 (1977).

Taxability of transactions between joint venture and its member. 59 H. 307, 582 P.2d 703 (1978).

"Person" includes partnerships and joint ventures. 61 H. 572, 608 P.2d 383 (1980).

Measurement of gasoline and terminating charge upon delivery were "sale". 65 H. 283, 651 P.2d 469 (1982).

Cited: 33 H. 766, 771 (1936).

 

 

Previous Vol04_Ch0201-0257 Next