§ 26-52-103 - Arkansas Statutes

LexisNexis Practice Insights

1. Delivery Charges Are Subject to Arkansas Sales and Use Tax

2. Taxable Service: Real Property versus Tangible Personal Property

26-52-103. Definitions.

As used in this chapter:

(1) "Alcoholic beverage" means a beverage that is suitable for human consumption and contains five-tenths of one percent (0.5%) or more of alcohol by volume;

(2) (A) "Bundled transaction" means a retail sale of two (2) or more products, except real property and services to real property, in which:

(i) The products are otherwise distinct and identifiable; and

(ii) The products are sold for one (1) nonitemized price.

(B) "Bundled transaction" does not include the sale of any product in which the sales price varies or is negotiable based on the selection by the purchaser of the products included in the transaction.

(C) The Department of Finance and Administration shall promulgate rules to implement this subdivision (2);

(3) (A) "Consumer", "purchaser", or "user" means the person to whom the taxable sale is made or to whom taxable services are furnished.

(B) All contractors are deemed to be consumers or users of all tangible personal property, including materials, supplies, and equipment used or consumed by them in performing any contract.

(C) The sales of all such tangible personal property to contractors are taxable sales within the meaning of this chapter;

(4) "Contract" means any agreement or undertaking to construct, manage, or supervise the construction, erection, alteration, or repair of any building or other improvement or structure affixed to real estate, including any of their component parts;

(5) "Contractor" means any person who contracts or undertakes to construct, manage, or supervise the construction, erection, alteration, or repair of any building or other improvement or structure affixed to real estate, including any of their component parts;

(6) (A) "Delivery charge" means a charge by a seller of tangible personal property or services for preparation and delivery to a location designated by the purchaser of the tangible personal property or services, including without limitation transportation, shipping, postage, handling, crating, and packing.

(B) If a shipment includes tax-exempt property and taxable property, the seller shall pay the tax imposed by this chapter only on the percentage of the delivery charge allocated to the taxable property by using:

(i) A percentage based on the total sales price of the taxable property compared to the total sales price of all property in the shipment; or

(ii) A percentage based on the total weight of the taxable property compared to the total weight of all property in the shipment;

(7) "Dietary supplement" means any product, other than tobacco, intended to supplement the diet that:

(A) Contains one (1) or more of the following dietary ingredients:

(i) A vitamin;

(ii) A mineral;

(iii) An herb or other botanical;

(iv) An amino acid;

(v) A dietary substance for use by humans to supplement the diet by increasing the total dietary intake; or

(vi) A concentrate, metabolite, constituent, extract, or combination of any ingredient described in this subdivision (7)(A) and is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or if not intended for ingestion in such a form, is not represented as conventional food and is not represented for use as a sole item of a meal or of the diet; and

(B) Is required to be labeled as a dietary supplement, identifiable by the "Supplement Facts" box found on the label and as required pursuant to 21 C.F.R. 101.36, as in effect on January 1, 2007;

(8) (A) "Direct mail" means printed material delivered or distributed by United States mail or other delivery service to a mass audience or to addressees on a mailing list provided by the purchaser or at the direction of the purchaser when the cost of the items is not billed directly to the recipients.

(B) "Direct mail" includes tangible personal property supplied directly or indirectly by the purchaser to the direct mail seller for inclusion in the package containing the printed material.

(C) "Direct mail" does not include multiple items of printed material delivered to a single address;

(9) "Director" means the Director of the Department of Finance and Administration or any of his or her authorized agents;

(10) (A) "Doing business" or "engaging in business" includes any and all local activity regularly and persistently pursued by any seller or vendor through agents, employees, or representatives with the object of gain, profit, or advantage and that results in a sale, delivery, or the transfer of the physical position of any tangible personal property by the vendor to the vendee at or from any point within Arkansas, whether from warehouse, store, office, storage point, rolling store, motor vehicle, delivery conveyance, or by any method or device under the control of the seller effecting such a local delivery without regard to the terms of sale with respect to point of acceptance of the order, point of payment, or any other condition.

(B) As set out in this subdivision (10), "doing business" or "engaging in business" is equally applicable to sellers of services as are made the subject matter of the tax imposed by this chapter.

(C) (i) The provisions of this subdivision (10) shall be cumulative to the gross receipts tax law and shall not be construed as levying a tax on any receipts derived from personal or professional services not before made the subject matter and within the scope of the present gross receipts tax law, as amended.

(ii) The provisions of this subdivision (10)(C) shall not be construed as repealing or modifying any of the provisions therein;

(11) "Established business" means any business operated or conducted by any person in a continuous manner for any length of time from an established place or in an established manner;

(12) (A) "Food" and "food ingredients" mean substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value.

(B) "Food" and "food ingredients" do not include an alcoholic beverage, tobacco, or a dietary supplement;

(13) (A) "Gross receipts", "gross proceeds", or "sales price" means the total amount of consideration, including cash, credit, property, and services, for which tangible personal property or services are sold, leased, or rented, valued in money, whether received in money or otherwise, without any deduction for the following:

(i) The seller's cost of the property sold;

(ii) The cost of materials used, labor or service cost, interest, any loss, any cost of transportation to the seller, any tax imposed on the seller, and any other expense of the seller;

(iii) Any charge by the seller for any service necessary to complete the sale, other than a delivery charge or an installation charge;

(iv) Delivery charge;

(v) (a) Installation charge.

(b) Installation charges will not be included in the "gross receipts", "gross proceeds", or "sales price" if they are not a specifically taxable service under this chapter or the Arkansas Compensating Tax Act of 1949, 26-53-101 et seq., and the installation charges have been separately stated on the invoice, billing, or similar document given to the purchaser; or

(vi) Credit for any trade-in.

(B) "Gross receipts", "gross proceeds", or "sales price" does not include:

(i) A discount including cash, term, or a coupon that is not reimbursed by a third party and that is allowed by a seller and taken by a purchaser on a sale;

(ii) Interest, financing, or a carrying charge from credit extended on the sale of tangible personal property or services, if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser; and

(iii) Any tax legally imposed directly on the consumer that is separately stated on the invoice, bill of sale, or similar document given to the purchaser;

(14) "Motor vehicle" means a vehicle that is self-propelled and is required to be registered for use on the highway;

(15) (A) (i) "Lease" or "rental" means any transfer of possession or control of tangible personal property for a fixed or indeterminate term for consideration.

(ii) A lease or rental may include future options to purchase or extend.

(B) "Lease" or "rental" does not include:

(i) A transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments;

(ii) A transfer of possession or control of property under an agreement that requires the transfer of title upon completion of required payments and payment of an option price that does not exceed the greater of one hundred dollars ($100) or one percent (1%) of the total required payments; or

(iii) (a) Providing tangible personal property along with an operator for a fixed or indeterminate period of time.

(b) A condition of this exclusion in this subdivision (15)(B)(iii) is that the operator is necessary for the equipment to perform as designed.

(c) For the purpose of this subdivision (15)(B)(iii), an operator must do more than maintain, inspect, or set up the tangible personal property.

(C) "Lease" or "rental" does include agreements covering motor vehicles and trailers if the amount of consideration may be increased or decreased by reference to the amount realized upon the sale or disposition of the property as defined in 26 U.S.C. 7701(h)(2), as in effect on January 1, 2007.

(D) This definition of "lease" or "rental" shall:

(i) Be used for sales and use tax purposes regardless of whether a transaction is characterized as a lease or rental under generally accepted accounting principles, the Internal Revenue Code of 1986, as in effect on January 1, 2007, the Uniform Commercial Code, 4-1-101 et seq., or another federal, state, or local law;

(ii) Be applied only prospectively from January 1, 2008, and shall have no retroactive impact on existing leases or rentals; and

(iii) Impact neither any existing sale-leaseback exemption nor exclusion;

(16) "Person" includes any individual, partnership, limited liability company, limited liability partnership, corporation, estate, trust, fiduciary, or any other legal entity;

(17) "Prepared food" means:

(A) Food sold in a heated state or heated by the seller;

(B) Two (2) or more food ingredients mixed or combined by the seller for sale as a single item; or

(C) (i) Food sold with an eating utensil provided by the seller, including a plate, knife, fork, spoon, glass, cup, napkin, or straw.

(ii) As used in subdivision (17)(C)(i) of this section, "plate" does not include a container or packaging used to transport the food;

(18) "Retail sale" or "sale at retail" means any sale, lease, or rental for any purpose other than for resale, sublease, or subrent;

(19) (A) "Sale" means the transfer of either the title or possession except in the case of a lease or rental for a valuable consideration of tangible personal property regardless of the manner, method, instrumentality, or device by which the transfer is accomplished.

(B) "Sale" includes the:

(i) Exchange, barter, lease, or rental of tangible personal property; or

(ii) Sale, exchanging, or other disposition of admissions, dues, or fees to clubs, to places of amusement, or to recreational or athletic events or for the privilege of having access to or the use of amusement, athletic, or entertainment facilities.

(C) "Sale" does not include the:

(i) Furnishing or rendering of services except as otherwise provided in this section; or

(ii) Transfer of title to a vehicle by the vehicle owner to an insurance company as a result of the settlement of a claim for damages to the vehicle.

(D) (i) In the case of a lease or rental of tangible personal property, including motor vehicles and trailers for less than thirty (30) days, the tax shall be paid on the basis of rental or lease payments made to the lessor of the tangible personal property during the term of the lease or rental regardless of whether Arkansas gross receipts tax or compensating use tax was paid by the lessor at the time of the purchase of the tangible personal property.

(ii) In the case of a lease or rental of tangible personal property, including motor vehicles and trailers for thirty (30) days or more, the tax shall be paid on the basis of rental or lease payments made to the lessor of the tangible personal property during the term of the lease or rental unless Arkansas gross receipts tax or compensating use tax was paid by the lessor at the time of the purchase of the tangible personal property;

(20) "Seller" means every person making a sale, lease, or rental of tangible personal property or services;

(21) (A) "Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched or that is in any other manner perceptible to the senses.

(B) "Tangible personal property" includes electricity, water, gas, steam, and prewritten computer software;

(22) "Tax period" or "taxable period" means either the calendar period or the taxpayer's fiscal period when a taxpayer has obtained a permit from the director or from any of his or her authorized agents to use a fiscal period in lieu of a calendar period;

(23) "Taxpayer" means any person liable to remit a tax under this chapter or to make a report for the purpose of claiming any exemption from payment of a tax levied by this chapter; and

(24) "Tobacco" means a cigarette, cigar, chewing or pipe tobacco, or any other item that contains tobacco.