Sec. 12-407a. Basis for determining whether a telecommunications service is subject to tax under this chapter. - Connecticut Statutes

      Sec. 12-407a. Basis for determining whether a telecommunications service is subject to tax under this chapter. (a) Except as otherwise provided in subsections (b) and (c) of this section, the rendering of telecommunications service shall be subject to tax under this chapter as a sale, for purposes of subparagraph (K) of subdivision (2) of subsection (a) of section 12-407, when such service is (1) (A) originated in this state and terminated in this state, (B) originated in this state and terminated outside this state and with respect to which such service is charged to a telephone number, customer or account located in this state or to the account of any transmission instrument in this state, or (C) originated outside this state and terminated in this state and with respect to which such service is charged to a telephone number, customer or account located in this state or to the account of any transmission instrument in this state, or (2) rendered by providing a private interstate telecommunications line on which the customer for such line has two or more locations connected to such line and the charges for which are related to (A) the number of customer locations connected to such line in this state, (B) the distance between customer locations connected to such line in this state, and (C) a portion of such line determined by a ratio, the numerator of which is the number of air miles between the state border and the denominator of which is the number of air miles between said closest connection to the state border in this state and the customer location connected to such line which is closest to the state border outside this state.

      (b) For purposes of determining the application of tax under this chapter to cellular mobile telecommunications service in accordance with subdivision (1) of subsection (a) of this section, (A) a call originated from a cellular mobile telephone shall be deemed to have originated in this state if the first site in a cellular telephone system, at which messages to or from cellular mobile telephones are transmitted or received, to establish a completed call is located in this state, (B) a call terminated at a cellular mobile telephone shall be deemed to have terminated in this state if the first such site to transmit the call to such telephone is located in this state, (C) a call originated in this state as described in subparagraph (A) of this subsection shall be deemed to have originated and terminated in this state if the call terminates in this state, and (D) a call terminated in this state as described in subparagraph (B) of this subsection shall be deemed to have originated and terminated in this state if the call originates in this state. This subsection shall apply to services that are rendered prior to August 2, 2002, provided, if a court of competent jurisdiction enters a final judgment on the merits that is based on federal law, that is no longer subject to appeal, and that substantially limits or impairs the essential elements of Sections 116 to 126, inclusive, of Title 4 of the United States Code, this subsection shall also apply to services that are rendered on or after the date of entry of such judgment.

      (c) (1) For purposes of this subsection:

      (A) "Mobile telecommunications service" means mobile telecommunications service, as defined in 4 USC 124;

      (B) "Charges for mobile telecommunications services" means charges for mobile telecommunications services, as defined in 4 USC 124;

      (C) "Home service provider" means home service provider, as defined in 4 USC 124;

      (D) "Customer" means customer, as defined in 4 USC 124;

      (E) "Place of primary use" means place of primary use, as defined in 4 USC 124; and

      (F) "Taxing jurisdiction" means taxing jurisdiction, as defined in 4 USC 124.

      (2) (A) For purposes of determining the application of tax under this chapter to mobile telecommunications service, mobile telecommunications services provided in any taxing jurisdiction to a customer, the charges for which are billed by or for the customer's home service provider, shall be deemed to be provided by the customer's home service provider.

      (B) Subject to the specific exceptions described in 4 USC 116(c), all charges for mobile telecommunications services that are deemed to be provided by the customer's home service provider are subject to tax under this chapter if the customer's place of primary use is in this state regardless of where the mobile telecommunications services originate, terminate or pass through.

      (3) (A) A home service provider shall be responsible for obtaining and maintaining a record of the customer's place of primary use. Except as provided in subdivision (4) of this subsection, if the home service provider's reliance on the information provided by its customer is in good faith: (i) The home service provider may rely on the applicable residential or business street address supplied by the home service provider's customer; and (ii) the home service provider shall not be held liable for any additional taxes under this chapter based on a different determination of the place of primary use.

      (B) Except as provided in subdivision (4) of this subsection, a home service provider may treat the address used by the home service provider for purposes of this chapter, for any customer under a service contract or agreement in effect on July 28, 2002, as that customer's place of primary use for the remaining term of such service contract or agreement, excluding any extension or renewal of such service contract or agreement.

      (4) (A) If the commissioner determines that the address used by a home service provider as a customer's place of primary use is not, in fact, the customer's place of primary use, the commissioner shall notify such customer of such determination and provide such customer an opportunity to demonstrate that the address used by a home service provider as a customer's place of primary use is, in fact, the customer's place of primary use.

      (B) If the customer fails to demonstrate, to the satisfaction of the commissioner, that the address is, in fact, the customer's place of primary use, the commissioner shall provide the home service provider with notice of the proper address to be used as such customer's place of primary use, and the home service provider shall begin using the address provided by the commissioner as such customer's place of primary use on a prospective basis from the date the commissioner provides notice of such address.

      (5) (A) Notwithstanding any other provision of law, the commissioner may provide an electronic database, as described in 4 USC 119, and any revisions to such database, to a home service provider.

      (B) If the commissioner does not provide an electronic database, as described in subparagraph (A) of this subdivision, to a home service provider, the home service provider shall be held harmless from tax under this chapter that otherwise would be due solely as a result of an assignment of a street address to an incorrect taxing jurisdiction if, subject to subdivision (4) of this subsection, the home service provider employs an enhanced zip code to assign each street address to a specific taxing jurisdiction for each level of taxing jurisdiction and exercises due diligence at each level of taxing jurisdiction to ensure that each such street address is assigned to the correct taxing jurisdiction.

      (6) (A) If a customer believes that an amount of tax or an assignment of place of primary use or taxing jurisdiction included on a billing is erroneous, the customer shall notify the home service provider in writing. The customer shall include in such written notification the street address for the customer's place of primary use, the account name and number for which the customer requests a correction, a description of the error asserted by the customer and any other information that the home service provider reasonably requires to process the request. No later than sixty days after the date of receiving a notice under this subdivision, the home service provider shall review its records. If such review establishes that the amount of tax, or the assignment of place of primary use or taxing jurisdiction is erroneous, then the home service provider shall correct the error and refund or credit the amount of tax erroneously collected from the customer for a period of up to two years from the date of the customer's written notification. If such review establishes that the amount of tax, or the assignment of place of primary use or taxing jurisdiction is correct, then the home service provider shall provide a written explanation to the customer.

      (B) If the customer is not satisfied with the explanation of the home service provider under subparagraph (A) of this subdivision, the customer may claim a refund from the taxing jurisdiction affected, provided the customer has first exhausted the remedy available to customers under subparagraph (A) of this subdivision, and, if the customer has done so and if the taxing jurisdiction affected is this state, the claim is made within the time prescribed in section 12-425.

      (7) This subsection shall apply to services that are rendered on or after August 2, 2002, provided, if a court of competent jurisdiction enters a final judgment on the merits that is based on federal law, that is no longer subject to appeal, and that substantially limits or impairs the essential elements of Sections 116 to 126, inclusive, of Title 4 of the United States Code, this subsection shall be invalid and have no legal effect as of the date of entry of such judgment.

      (d) If nontaxable charges are aggregated with and not separately stated from taxable charges for telecommunications services, then the nontaxable charges may be subject to tax unless the provider can reasonably identify charges not subject to tax under this chapter from its books and records that are kept in the regular course of business. A customer may not rely upon the nontaxability of charges for services unless the customer's provider separately states the charges for nontaxable services from taxable charges for telecommunications services or the provider elects, after receiving written request from the customer in the form required by the provider, to provide verifiable data based upon the provider's books and records that are kept in the regular course of business that reasonably identifies the nontaxable charges.

      (P.A. 89-251, S. 3, 203; June Sp. Sess. P.A. 91-3, S. 109, 168; June Sp. Sess. P.A. 01-6, S. 71, 85; P.A. 02-103, S. 2.)

      History: June Sp. Sess. P.A. 91-3 amended Subsec. (a) to clarify that services which originate or terminate outside this nation, as well as in another state, are subject to the tax, effective August 22, 1991, and applicable to sales occurring on or after October 1, 1991; June Sp. Sess. P.A. 01-6 amended Subsec. (a) to add exception for Subsecs. (b) and (c) and make technical changes, amended Subsec. (b) to add provisions re application of subsection and make a technical change, added new Subsec. (c) to make the taxation under this chapter of cellular telephone calls and related services consistent with federal law and added new Subsec. (d) re treatment of nontaxable charges, effective July 1, 2001, and applicable to customer bills issued after the first day of the first month beginning more than two years after the date of enactment of Public Law No. 106-252; P.A. 02-103 made technical changes in Subsec. (a).