238-1 Definitions, generally. Whenever used in this chapter, unless otherwise required by the context:

"General excise tax law" means chapter 237, as amended from time to time.

"Import" (or any nounal, verbal, adverbial, adjective, or other equivalent of the term) includes:

(1) The importation into the State of property, services, or contracting owned, purchased from an unlicensed seller, or however acquired, from any other part of the United States or its possessions or from any foreign country, whether in interstate or foreign commerce, or both; and

(2) The sale and delivery of property owned, purchased from an unlicensed seller, or however acquired, by a seller who is or should be licensed under the general excise tax law from an out-of-state location to an in-state purchaser, regardless of the free on board point or the place where title to the property transfers to the purchaser.

"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.

"Person", "business", "engaging in business", "retailer", "wholesaler", "jobber", and "contractor" have the meanings defined by chapter 237.

"Price" means the total amount for which property, services, or contracting are purchased, valued in money, whether paid in money or otherwise, and wheresoever paid; provided that cash discounts allowed and taken on sales shall not be included.

"Property" means tangible personal property, intangible property, and prepaid telephone calling services but does not include:

(1) Newspapers or other periodical publications purchased on the subscription plan, issued at stated intervals as frequently as four times a year, and of the class admitted to the United States mails as second class matter under the laws and regulations governing the postal service on January 1, 1965;

(2) Securities as defined in title 15 United States Code section 78c or similar laws of jurisdictions outside the United States;

(3) Commodities for future delivery and other agreements, options, and rights as defined in title 7 United States Code section 2 that are permitted to be traded on a board of trade designated by the Commodities Futures Trading Commission under the Commodity Exchange Act;

(4) Evidence of indebtedness;

(5) Interest in land; or

(6) Dividends as defined by chapter 235.

"Purchase" and "sale" means any transfer, exchange, or barter, conditional or otherwise, in any manner or by any means, wheresoever consummated, of property, services, or contracting for a consideration.

"Purchaser" means any person purchasing property, services, or contracting and "importer" means any person importing property, services, or contracting, regardless if at the time of importation, the property, services, or contracting is owned by the importer, purchased from an unlicensed seller, or however acquired; provided that the terms "purchaser" and "importer" shall not include the State, its political subdivisions, or wholly owned agencies or instrumentalities of the State or a political subdivision; or the United States, its wholly owned agencies or instrumentalities, or any person immune from the tax imposed by this chapter under the Constitution and laws of the United States but the terms shall include national banks.

"Representation" refers to any or all of the following:

(1) A seller being present in the State;

(2) A seller having in the State a salesperson, commission agent, manufacturer's representative, broker, or other person who is authorized or employed by the seller to assist the seller in selling property, services, or contracting for use or consumption in the State, by procuring orders for the sales, making collections or deliveries, or otherwise; and

(3) A seller having in the State a person upon whom process directed to the seller from the courts of the State may be served, including the director of commerce and consumer affairs and the deputy director in the cases provided in section 414-64.

"Seller" means any person engaged in the business of selling property, services, or contracting, wheresoever engaged, but does not include the United States or its wholly owned agencies or instrumentalities other than national banks, the State or a political subdivision thereof, or wholly owned agencies or instrumentalities of the State or a political subdivision.

"Service business or calling" includes all activities engaged in for other persons for a consideration that involve the rendering of a service as distinguished from the sale of property or the production and sale of property. "Service business or calling" includes professional services, but does not include services rendered by an employee to the employee's employer.

"Unlicensed seller" means any seller who, with respect to the particular sale, is not subject to the tax imposed by chapter 237, whether or not the seller holds a license under that chapter, but does not include any seller with respect to any sale which is expressly exempted from the tax imposed by chapter 237.

"Use" (and any nounal, verbal, adjectival, adverbial, and other equivalent form of the term) herein used interchangeably means any use, whether the use is of such nature as to cause the property, services, or contracting to be appreciably consumed or not, or the keeping of the property or services for such use or for sale, the exercise of any right or power over tangible or intangible personal property incident to the ownership of that property, and shall include control over tangible or intangible property by a seller who is licensed or who should be licensed under chapter 237, who directs the importation of the property into the State for sale and delivery to a purchaser in the State, liability and free on board (FOB) to the contrary notwithstanding, regardless of where title passes, but the term "use" shall not include:

(1) Temporary use of property, not of a perishable or quickly consumable nature, where the property is imported into the State for temporary use (not sale) therein by the person importing the same and is not intended to be, and is not, kept permanently in the State. For example, without limiting the generality of the foregoing language:

(A) In the case of a contractor importing permanent equipment for the performance of a construction contract, with intent to remove, and who does remove, the equipment out of the State upon completing the contract;

(B) In the case of moving picture films imported for use in theaters in the State with intent or under contract to transport the same out of the State after completion of such use; and

(C) In the case of a transient visitor importing an automobile or other belongings into the State to be used by the transient visitor while therein but which are to be used and are removed upon the transient visitor's departure from the State;

(2) Use by the taxpayer of property acquired by the taxpayer solely by way of gift;

(3) Use which is limited to the receipt of articles and the return thereof, to the person from whom acquired, immediately or within a reasonable time either after temporary trial or without trial;

(4) Use of goods imported into the State by the owner of a vessel or vessels engaged in interstate or foreign commerce and held for and used only as ship stores for the vessels;

(5) The use or keeping for use of household goods, personal effects, and private automobiles imported into the State for nonbusiness use by a person who:

(A) Acquired them in another state, territory, district, or country;

(B) At the time of the acquisition was a bona fide resident of another state, territory, district, or country;

(C) Acquired the property for use outside the State; and

(D) Made actual and substantial use thereof outside this State;

provided that as to an article acquired less than three months prior to the time of its importation into the State it shall be presumed, until and unless clearly proved to the contrary, that it was acquired for use in the State and that its use outside the State was not actual and substantial;

(6) The leasing or renting of any aircraft or the keeping of any aircraft solely for leasing or renting to lessees or renters using the aircraft for commercial transportation of passengers and goods or the acquisition or importation of any such aircraft or aircraft engines by any lessee or renter engaged in interstate air transportation. For purposes of this paragraph, "leasing" includes all forms of lease, regardless of whether the lease is an operating lease or financing lease. The definition of "interstate air transportation" is the same as in 49 U.S.C. 40102;

(7) The use of oceangoing vehicles for passenger or passenger and goods transportation from one point to another within the State as a public utility as defined in chapter 269;

(8) The use of material, parts, or tools imported or purchased by a person licensed under chapter 237 which are used for aircraft service and maintenance, or the construction of an aircraft service and maintenance facility as those terms are defined in section 237-24.9;

(9) The use of services or contracting imported for resale where the contracting or services are for resale, consumption, or use outside the State pursuant to section 237-29.53(a); and

(10) The use of property, services, or contracting imported by foreign diplomats and consular officials who are holding cards issued or authorized by the United States Department of State granting them an exemption from state taxes.

With regard to purchases made and distributed under the authority of chapter 421, a cooperative association shall be deemed the user thereof.

"Value" means fair and reasonable cash value at the time of accrual of the tax. [L 1965, c 155, pt of 2 and c 201, 40; Supp, 119-1; HRS 238-1; am L 1971, c 4, 6; am L 1974, c 144, 2; am L 1981, c 167, 4; am L 1982, c 204, 8; am L 1983, c 124, 17 and c 167, 4; am L 1985, c 270, 4; gen ch 1985, 1993; am L 1997, c 107, 4; am L 1999, c 70, 4; am L 2000, c 27, 2, c 38, 3, and 198, 7; am L 2001, c 210, 3; am L 2002, c 40, 8; am L 2004, c 114, 2; am L 2013, c 46, 1; am L 2018, c 183, 3]

 

Note

 

The 2018 amendment applies to taxable years beginning after December 31, 2018. L 2018, c 183, 7.

 

Cross References

 

Sale of prepaid telephone calling services, see 237-13.8.

 

Attorney General Opinions

 

Federal credit union within definition of "purchaser" and immune from tax. Att. Gen. Op. 65-29.

 

Case Notes

 

"Value" as the fair and reasonable value may properly include freight charges. 56 H. 621, 547 P.2d 2 (1976).

Under the plain language of this section, Delaware corporation was not subject to the use tax where the sale of books was directly from the corporation to the state library; the corporation did not import the books from an unlicensed seller, nor did it purchase the books and "resell" the goods to the library and thus could not have imported from itself or purchased from itself. 103 H. 359, 82 P.3d 804 (2004).

Where plaintiff: (1) caused consumer electronic goods from various mainland vendors to be shipped to Hawaii in order to restock plaintiff's retail stores in this State, constituting importation of goods into the State for purposes of resale; and (2) used the goods in Hawaii by "keeping the property" in this State "for sale", plaintiff was subject to assessment of the use tax under 238-2. 128 H. 116, 284 P.3d 209 (2012).

 

 

Previous Vol04_Ch0201-0257 Next