67-6-102 - Chapter definitions Definitions applicable for taxation of charges for mobile telecommunications services. [Amended effective July 1, 2011. See the Compiler's Notes.] - Tennessee Statutes

67-6-102. Chapter definitions Definitions applicable for taxation of charges for mobile telecommunications services. [Amended effective July 1, 2011. See the Compiler's Notes.]

As used in this chapter, unless the context otherwise requires:

     (1)  “Advertising agency” means a business, more than eighty percent (80%) of whose gross receipts in the previous taxable year were, or in the first taxable year are reasonably projected to be, from charges for advertising services. For purposes of this definition, “gross receipts” does not include charges for printing, imprinting, reproduction, publishing of tangible personal property or photography to the extent that:

          (A)  The activity was not performed by the business itself but was contracted out to another business; and

          (B)  The charges for the activity were passed through the business to its client;

     (2)  “Advertising materials” means tangible personal property or its digital equivalent produced to advertise a product, service, idea, concept, issue, place or thing, including, but not limited to, brochures, catalogs and point-of-purchase materials, but not including preliminary artwork, and not including original sound recordings or video recordings produced by recording studios, television studios, video production studios or by or for advertising agencies, or masters produced from the original recordings, regardless of whether the original recordings or masters are produced in a tangible medium or a digital equivalent;

     (3)  (A)  “Advertising services” means services rendered by an advertising agency to promote a product, service, idea, concept, issue, place or thing, including services rendered to design and produce advertising materials prior to the acceptance of the advertising materials for reproduction or publication, including, but not limited to:

                (i)  Advice and counseling regarding marketing and advertising;

                (ii)  Strategic planning for marketing and advertising;

                (iii)  Consumer research;

                (iv)  Account planning;

                (v)  Public relations;

                (vi)  Design;

                (vii)  Layout;

                (viii)  Preparation of preliminary art;

                (ix)  Creative consultation, coordination, media placement, direction and supervision;

                (x)  Script and copywriting;

                (xi)  Editing;

                (xii)  Supervision of the production of advertising materials, including quality control;

                (xiii)  Direct mail; and

                (xiv)  Account management services;

          (B)  “Advertising services” does not include the production of final artwork or advertising materials;

     (4)  “Agricultural purposes” means operating tractors or other farm equipment used exclusively, whether for hire or not, in plowing, planting, harvesting, raising or processing of farm products at a farm, nursery or greenhouse, operating farm irrigation systems, or operating motor vehicles or other logging equipment used exclusively, whether for hire or not, in cutting and harvesting trees, when the vehicles or equipment are not operated upon the public highways of this state;

     (5)  “Aircraft” has the same meaning used in § 42-1-101;

     (6)  “Alcoholic beverages” means beverages that are suitable for human consumption and contain one half of one percent (0.5%) or more of alcohol by volume;

     (7)  “Ancillary services” means services that are associated with, or incidental to, the provision of telecommunications services, including, but not limited to, detailed telecommunications billing service, directory assistance service, vertical service, and voice mail service. As used in this subdivision (7):

          (A)  “Conference bridging service” means an ancillary service that links two (2) or more participants of an audio or video conference call, and may include the provision of a telephone number. Conference bridging service does not include the telecommunications services used to reach the conference bridge;

          (B)  “Detailed telecommunications billing service” means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement;

          (C)  “Directory assistance” means an ancillary service of providing telephone number information, and address information;

          (D)  “Vertical service” means an ancillary service that is offered in connection with one (1) or more telecommunications services, that offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services; and

          (E)  “Voice mail service” means an ancillary service that enables the customer to store, send or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service; [Effective July 1, 2011. See the Compiler’s Notes.]

     (8)  (A)  “Bundled transaction” means the retail sale of two (2) or more products, except real property and services to real property where:

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

                (ii)  The products are sold for one (1) non-itemized price;

          (B)  A “bundled transaction” does not include the sale of any products in which the sales price varies, or is negotiable, based on the selection by the purchaser of the products included in the transaction;

          (C)  “Distinct and identifiable products” does not include:

                (i)  Packaging, such as containers, boxes, sacks, bags, and bottles, or other materials, such as wrapping, labels, tags, and instruction guides, that accompany the retail sale of the products and are incidental or immaterial to the retail sale of the products. Examples of packaging that is incidental or immaterial include grocery sacks, shoeboxes, dry cleaning garment bags and express delivery envelopes and boxes;

                (ii)  A product provided free of charge with the required purchase of  another product. A product is provided free of charge if the sales price of the product purchased does not vary depending on the inclusion of the product provided free of charge;

                (iii)  Items included in the definition of sales price, pursuant to subdivision (82);

          (D)  “One non-itemized price” does not include a price that is separately identified by product on binding sales or other supporting sales-related documentation made available to the customer in paper or electronic form, including, but not limited to, an invoice, bill of sale, receipt, contract, service agreement, lease agreement, periodic notice of rates and services, rate card, or price list;

          (E)  A transaction that otherwise meets the definition of a bundled transaction is not a bundled transaction if it is:

                (i)  The retail sale of tangible personal property and a service where the tangible personal property is essential to the use of the service, and is provided exclusively in connection with the service, and the true object of the transaction is the service;

                (ii)  The retail sale of services where one (1) service is provided that is  essential to the use or receipt of a second service and the first service is provided exclusively in connection with the second service and the true object of the transaction is the second service;

                (iii)  A transaction that includes taxable products and nontaxable products and the purchase price or sales price of the taxable products is de minimis;

                     (a)  “De minimis” means the seller's purchase price or sales price of the taxable products is ten percent (10%) or less of the total purchase price or sales price of the bundled products;

                     (b)  Sellers shall use either the purchase price or the sales price of the products to determine if the taxable products are de minimis. Sellers may not use a combination of the purchase price and sales price of the products to determine if the taxable products are de minimis; and

                     (c)  Sellers shall use the full term of a service contract to determine if the taxable products are de minimis; or

                (iv)  (a)  The retail sale of exempt tangible personal property and taxable tangible personal property, where:

                           (1)  The transaction includes food and food ingredients, drugs, durable medical equipment, mobility enhancing equipment, over-the-counter drugs, prosthetic devices or medical supplies; and

                           (2)  The seller's purchase price or sales price of the taxable tangible personal property is fifty percent (50%) or less of the total purchase price or sales price of the bundled tangible personal property;

                     (b)  Sellers may not use a combination of the purchase price and sales price of the tangible personal property when making the fifty  percent (50%) determination for a transaction;

     (9)  (A)  “Business” means any activity engaged in by any person, or caused to be engaged in by such person, with the object of gain, benefit, or advantage, either direct or indirect;

          (B)  “Business” does not include occasional and isolated sales or transactions by a person not regularly engaged in business, or the occasional and isolated sale at retail or use of services sold by or purchased from a person not regularly engaged in business as a vendor of taxable services, or from one who is such a vendor but is not normally a vendor with respect to the services sold or purchased in such occasional or isolated transaction. “Business” does not include those occasional or isolated sales or transactions by such a person involving mobile homes or house trailers, as defined by § 55-4-111, when the consummation of such exclusively involves the assumption by the purchaser of a previously existing finance contract and no other consideration is received by the seller. “Business” does not include any sales or use tax of tangible personal property of any type sold directly to consumers by any person, including, but not limited to, the Girl Scouts or county fairs; provided, however, that the tangible personal property is not regularly sold by the person or is regularly sold by the person only during a temporary sales period that occurs on a semiannual, or less frequent, basis, or, if sold by a volunteer fire department, only during a temporary sales period that occurs no more than four (4) times per calendar year. For charitable entities whose primary purpose is fundraising in support of a city, county or metropolitan library system, “business” does not include sales that the charitable entity elects to make in lieu of two semiannual temporary sales periods; provided, that the sales do not exceed one hundred thousand dollars ($100,000) per calendar year; and provided further, that the election by the charitable entity shall remain in effect for no less than four (4) years;

          (C)  “Business” includes occasional and isolated sales or transactions of aircraft, vessels, or motor vehicles between corporations and their members or stockholders and also includes such transactions caused by the merger, consolidation, or reorganization of corporations. “Business” also includes occasional and isolated sales or transactions of aircraft, vessels, or motor vehicles between partnerships and the partners thereof and transfers between separate partnerships. Transfers caused by the dissolution of a partnership due solely to a partner, in a partnership composed of three (3) or more persons, voluntarily ceasing to be associated in the carrying on of business of the partnership, as provided in § 61-1-128 [repealed], is not included in “business.” “Business” shall be construed to include occasional and isolated sales or transactions by such a person involving aircraft, vessels or motor vehicles, which terms include trailers and special motor equipment sold in conjunction therewith, as defined by and required to be registered under the laws of Tennessee with an agency of this state or under the laws of the United States with an agency of the federal government, unless such sales or transactions are otherwise exempt under this chapter or are sales between persons who are married, lineal relatives or spouses of lineal relatives, or siblings. Such sales or transactions involving aircraft based in this state shall be presumed to be made and taxable in this state; and any registration reflecting such aircraft that are so based shall constitute evidence thereof;

     (10)  “Candy” means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. Candy shall not include any preparation containing flour and shall require no refrigeration;

     (11)  “Certified automated system” means software certified under the Streamlined Sales and Use Tax Agreement (SSUTA) to calculate the tax imposed by each jurisdiction on a transaction, determine the amount of tax to remit to the appropriate state, and maintain a record of the transaction;

     (12)  “Certified service provider” means an agent certified under the Streamlined Sales and Use Tax Agreement to perform all of the seller's sales and use tax functions, other than the seller's obligation to remit tax on its own purchases;

     (13)  “Clothing” means all human wearing apparel suitable for general use;

     (14)  “Clothing accessories or equipment” means incidental items worn on the person or in conjunction with clothing;

     (15)  “Coin-operated telephone service” means a telecommunications service paid for by inserting money into a telephone accepting direct deposits of money to operate; [Effective July 1, 2011. See the Compiler’s Notes.]

     (16)  “Commercial air carrier” means an entity authorized and certificated by the United States department of transportation or another federal or a foreign authority to engage in the carriage of persons or property in interstate or foreign commerce;

     (17)  “Commissioner” means and includes the commissioner of revenue or the commissioner's duly authorized assistants;

     (18)  “Common carrier” means every person holding a certificate of public convenience and necessity as a common carrier from the interstate commerce commission or the United States department of transportation or its predecessor agency of the federal government;

     (19)  “Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions;

     (20)  “Computer software” means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task;

     (21)  “Computer software maintenance contract” means a contract that obligates a person to provide a customer with future updates or upgrades to computer software, support services with respect to computer software, or both. However, “computer software maintenance contract” does not include telephone or other support services that are optional and are sold separately and invoiced separately and do not include any transfer, repair or maintenance of computer software on the part of the seller;

     (22)  “Construction machinery” means machinery designed for and used exclusively in the preparation for, assembly, fabrication, and finishing of permanent improvements to real estate;

     (23)  “Cost price” means the actual cost of articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor, or service costs, transportation charges, or any expenses whatsoever;

     (24)  “Data center” means a building or buildings, either newly constructed, expanded, or remodeled, housing high-tech computer systems and related equipment;

     (25)  “Dealer” means every person, as used in this chapter, including Model 1, Model 2, and Model 3 sellers, where the context requires, who:

          (A)  Manufactures or produces tangible personal property for sale at retail, for use, consumption, distribution, or for storage to be used or consumed in this state;

          (B)  Imports, or causes to be imported, tangible personal property from any state or foreign country, for sale at retail, for use, consumption, distribution, or for storage to be used or consumed in this state;

          (C)  Sells at retail, or who offers for sale at retail, or who has in such person's possession for sale at retail, or for use, consumption, distribution, or storage to be used or consumed in this state, tangible personal property as defined in this section;

          (D)  Has sold at retail, used, consumed, distributed, or stored for use or consumption in this state, tangible personal property and who cannot prove that the tax levied by this chapter has been paid on the sale at retail, the use, the consumption, the distribution, or the storage of the tangible personal property;

          (E)  Leases or rents tangible personal property, as defined in this chapter, for a consideration, permitting the use or possession of the property without transferring title to such property;

          (F)  Is the lessee or renter of tangible personal property, as defined in this chapter, and who pays to the owner of such property a consideration for the use or possession of such property without acquiring title to such property;

          (G)  Maintains or has within this state, directly or by a subsidiary, an office, distributing house, sales room or house, warehouse, or other place of business;

          (H)  Furnishes any of the things or services taxable under this chapter;

          (I)  Has any representative, agent, salesperson, canvasser or solicitor operating in this state, or any person who serves in such capacity, for the purpose of making sales or the taking of orders for sales, regardless of whether such representative, agent, salesperson, canvasser or solicitor is located here permanently or temporarily, and regardless of whether an established place of business is maintained in this state;

          (J)  Engages in the regular or systematic solicitation of a consumer market in this state by the distribution of catalogs, periodicals, advertising fliers, or other advertising, or by means of print, radio or television media, by telegraphy, telephone, computer data base, cable, optic, microwave, or other communication system;

          (K)  Uses tangible personal property, whether the title to such property is in such person or some other entity, and whether or not such other entity is required to pay a sales or use tax, in the performance of such person's contract or to fulfill such person's contract obligations, unless such property has previously been subjected to a sales or use tax, and the tax due thereon has been paid;

          (L)  Sells at retail or charges admission, dues or fees as defined in this chapter; or

          (M)  Rents or provides space to a dealer without a permanent location in this state or to dealers who are registered for sales tax at other locations in this state, but who are making sales at this location on a less than permanent basis; provided, that “dealer” does not include flea market operators;

     (26)  “Delivered electronically” means delivered to the purchaser by means other than tangible storage media;

     (27)  (A)  “Delivery charges” means charges by the seller of personal property or services for preparation and delivery to a location designated by the purchaser of personal property or services, including, but not limited to, transportation, shipping, postage, handling, crating, and packing. Delivery charges shall not include delivery for direct mail when the charges are separately stated on an invoice or similar billing document given to the purchaser. If the shipment includes exempt property and taxable property, the seller should allocate the delivery charge by using:

                (i)  A percentage based on the total sales price of the taxable property compared to the sales prices 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;

          (B)  The seller shall tax the percentage of the delivery charge allocated to the taxable property but does not have to tax the percentage allocated to the exempt property;

     (28)  “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 subdivisions (28)(A)(i)-(v);

          (B)  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

          (C)  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;

     (29)  “Digital audio works” means works that result from the fixation of a series of musical, spoken, or other sounds, that are transferred electronically, including prerecorded or livesongs, music, readings of books or other written materials, speeches, ringtones, or other sound recording. For purposes of this subdivision (29), “ringtones” means digitized sound files that are downloaded onto a device and that may be used to alert the customer with respect to a communication. “Digital audio works” does not include audio greeting cards sent by electronic mail;

     (30)  “Digital audio-visual works” means a series of related images that, when shown in succession, impart an impression of motion, together with accompanying sounds, if any, that are transferred electronically. “Digital audio-visual works” includes motion pictures, musical videos, news and entertainment programs, and live events. “Digital audio-visual works” does not include video greeting cards sent by electronic mail or video or electronic games;

     (31)  “Digital books” means works that are generally recognized in the ordinary and usual sense as “books” that are transferred electronically, including works of fiction and nonfiction and short stories. “Digital books” does not include newspapers, magazines, periodicals, chat room discussions or weblogs;

     (32)  “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 are not billed directly to the recipients. “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. “Direct mail” does not include multiple items of printed material delivered to a single address;

     (33)  “Direct pay permit” means special written permission granted to a taxpayer by the commissioner to make all purchases free of the sales or use tax and report all sales or use tax due directly to the department;

     (34)  “Direct pay permit holder” means a taxpayer who holds a direct pay permit;

     (35)  “Drug” means a compound, substance or preparation, and any component of a compound, substance or preparation, other than food and food ingredients, dietary supplements or alcoholic beverages:

          (A)  Recognized in the official United State Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, and supplement to any of them;

          (B)  Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; or

          (C)  Intended to affect the structure or any function of the body;

     (36)  (A)  “Durable medical equipment” means equipment that:

                (i)  Can withstand repeated use;

                (ii)  Is primarily and customarily used to serve a medical purpose;

                (iii)  Generally is not useful to a person in the absence of illness or injury; and

                (iv)  Is not worn in or on the body;

          (B)  “Durable medical equipment” includes repair and replacement parts for the equipment; provided, however, that the repair and replacement parts shall not include parts, components, or attachments that are for single patient use. “Durable medical equipment” does not include mobility enhancing equipment;

     (37)  “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;

     (38)  “Energy resource recovery facility” means a facility for the production of energy in the form of steam or chilled water from the controlled burning of combustible materials, including, but not limited to, coal, fuel oil, or natural gas, where such energy is to be used in a system for heating and cooling five (5) or more separate buildings;

     (39)  “Fabricating or processing tangible personal property for resale” means only tangible personal property that is fabricated or processed for resale and ultimate use or consumption off the premises of the one engaging in such fabricating or processing, or hot mix asphalt and crushed stone fabricated by a contractor for use by the contractor in highway or road construction projects funded by tax revenues. “Fabricating or processing tangible personal property for resale” shall be deemed to include providing fabrication and repair services to aircraft owned by nonaffiliated business entities whether commercial, governmental or foreign; provided, that the dealer performing such services qualifies for the credit allowed in § 67-4-2109(b). “Fabricating or processing tangible personal property for resale” shall not include any other type of repair services. “Fabricating or processing tangible personal property for resale” includes the processing of photographic film into negatives and/or photographic prints for resale;

     (40)  [Deleted by 2007 amendment.]

     (41)  “Final artwork” means tangible personal property or its digital equivalent that is suitable for use in producing advertising materials and includes, but is not limited to, photographs, illustrations, drawings, paintings, calligraphy, models and similar works that are used to produce advertising materials, but does not include preliminary artwork or original sound recordings or video recordings produced by recording studios, television studios, video production studios, or by or for advertising agencies, or masters produced from the original recordings regardless of whether the original recordings or masters are produced in a tangible medium or a digital equivalent;

     (42)  “Flea market” means a place of business that provides space more than two (2) times a year to two (2) or more persons for the purpose of making sales at retail of tangible personal property that, during the usual course of being displayed or offered for sale, is not stored or displayed permanently at that space. “Flea market” does not include hotels, convention centers, municipal auditoriums, municipal coliseums, or gun shows, if such gun shows are sponsored by a not-for-profit corporation;

     (43)  “Flea market operator” means any person who receives compensation for providing space more than two (2) times a year to two (2) or more persons for the purpose of making sales at retail of tangible personal property that, during the usual course of being displayed or offered for sale, is not stored or displayed permanently at that space. “Flea market operator” does not include a hotel, convention center, municipal auditorium, municipal coliseum, or gun show operator, if such gun shows are sponsored by a not-for-profit corporation;

     (44)  “Food and food ingredients” means 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. “Food and food ingredients” does not include alcoholic beverages, tobacco, candy, dietary supplements, or prepared food;

     (45)  “Grooming and hygiene products” are soaps and cleaning solutions, shampoo, toothpaste, mouthwash, antiperspirants, and suntan lotions and screens, regardless of whether the items meet the definition of over-the-counter drugs;

     (46)  “Gross sales” means the sum total of all retail sales of tangible personal property and all proceeds of services taxable under this chapter as defined in this section, without any deduction whatsoever of any kind or character, except as provided in this chapter;

     (47)  “Industrial machinery” means:

          (A)  (i)  Machinery, apparatus and equipment with all associated parts, appurtenances and accessories, including hydraulic fluids, lubricating oils, and greases necessary for operation and maintenance, repair parts and any necessary repair or taxable installation labor therefor, that is necessary to, and primarily for, the fabrication or processing of tangible personal property for resale and consumption off the premises, or pollution control facilities primarily used for air pollution control or water pollution control, where the use of such machinery, equipment or facilities is by one who engages in such fabrication or processing as one's principal business or who engages in the fabrication or processing of materials into trusses, window units or door units for resale as part of the principal business of the sale of building supplies either within or without this state, or such use by a county or municipality or a contractor pursuant to a contract with such county or municipality for use in water pollution control or sewage systems, also mining machinery, apparatus equipment and materials, with all associated parts and accessories, including repair parts and any necessary repair or installation labor, that is necessary to and primarily for:

                     (a)  The removal, extraction or detachment of coal from land by surface, underground or other lawful methods of mining and the construction or maintenance of necessary ingress and egress from the mine;

                     (b)  The removal, handling and replacement of overburden and spoils materials; or

                     (c)  The reclamation of mined areas reclaimed under state or federal laws, rules or regulations;

                (ii)  As used in this chapter, “pollution control facilities” means any system, method, improvement, structure, device or appliance appurtenant thereto used or intended for the primary purpose of eliminating, preventing or reducing air or water pollution, or for the primary purpose of treating, pretreating, recycling or disposing of any hazardous or toxic waste, solid or liquid, when such pollutants are created as a result of fabricating or processing by one who engages in fabricating or processing as such person's principal business activity, which, if released without such treatment, pretreatment, modification or disposal, might be harmful, detrimental or offensive to the public and the public interest;

          (B)  Machinery that is necessary to and primarily for remanufacturing industrial machinery as defined in subdivision (47)(A) when such utilization is by one whose principal business is that of remanufacturing industrial machinery. For the purposes of this subdivision (47)(B), “remanufacturing” means making new or different products with new or different functions from the scrap materials used to make them;

          (C)  Machinery utilized in the pre-press and press operations in the business of printing, including plates and cylinders, and including the component parts and fluids or chemicals necessary for the specific mechanical or chemical actions or operations of such machinery, plates and cylinders, regardless of whether or not the operations occur at the point of retail sales;

          (D)  Such industrial machinery necessary to and primarily for the fabrication and processing of tangible personal property for resale or used primarily for the control of air pollution or water pollution includes, but is not limited to:

                (i)  Machines used for generating, producing, and distributing utility services, electricity, steam, and treated or untreated water; and

                (ii)  Equipment used in transporting raw materials from storage to the manufacturing process, and transporting finished goods from the end of the manufacturing process to storage;

          (E)  (i)  Machinery used to package manufactured items, where the use of such machinery is by a person whose principal business is fabricating or processing tangible personal property for resale. Notwithstanding the principal business of the user, this exemption shall also apply where the use of such machinery at a location is to package automotive aftermarket products manufactured at other locations by the same person or by a corporation affiliated with the manufacturing corporation such that:

                     (a)  Either corporation directly owns or controls one hundred percent (100%) of the capital stock of the other corporation; or

                     (b)  One hundred percent (100%) of the capital stock of both corporations is directly owned or controlled by a common parent;

                (ii)  To “package,” as used in subdivision (47)(E)(i), refers only to the fabrication and/or installation of that packaging that will accompany the product when sold at retail;

          (F)  Such industrial machinery necessary to and primarily for the fabrication or processing of tangible personal property for resale and consumption off the premises or used primarily for the control of air pollution or water pollution does not include machinery, apparatus and equipment used prior to or after equipment exempted by subdivision (47)(D)(ii), and does not include equipment used for maintenance or the convenience or comfort of workers;

          (G)  Machinery, apparatus and equipment with all associated parts, appurtenances and accessories, including hydraulic fluids, lubricating oils and greases necessary for operation and maintenance, repair parts and any necessary repair or taxable installation labor therefor, that is necessary to, and primarily for, the fabricating or processing of prescription eyewear, where a majority of such eyewear is ultimately dispensed to patients in states other than Tennessee;

          (H)  (i)  Material handling equipment and racking systems, used by a corporation subject to Tennessee franchise, excise taxes, directly and primarily for the storage or handling and movement of tangible personal property in a qualified, new or expanded warehouse or distribution facility, that are purchased beginning one (1) year prior to the start of the construction or expansion and ending one (1) year after the substantial completion of the construction or expansion of the facility, but in no event shall the period exceed three (3) years. “Qualified, new or expanded warehouse or distribution facility” means a new or expanded facility, that meets the requirements set out in this subdivision (47)(H), for the storage or distribution of finished tangible personal property. Such facilities shall not include a building where tangible personal property is fabricated, processed, assembled or sold over-the-counter to consumers, except for taxpayers that qualify under the provisions of Acts 1995, ch. 185, or are configuring, testing or packaging computer products. “Configuring” computer products means integrating a computer with peripheral computer products, such as a hard disk drive, additional memory or software. A qualifying facility must also be:

                     (a)  A warehouse or distribution facility constructed in this state through an investment in excess of ten million dollars ($10,000,000) by the taxpayer, and/or a lessor to the taxpayer, over a period not exceeding three (3) years, in a newly constructed and previously unoccupied building and/or equipment for the facility; or

                     (b)  An expansion to an existing warehouse or distribution facility, previously qualified under subdivision (47)(H)(i), through an additional investment in excess of ten million dollars ($10,000,000) by the taxpayer, and/or a lessor to the taxpayer over an additional period not exceeding three (3) years, for additions to the building and the purchase of new equipment for use in the expanded facility;

                (ii)  A taxpayer shall qualify for the exemption afforded to material handling and racking systems under subdivision (47)(H)(i) by submitting an application to the commissioner for the exemption, together with a plan describing the investment to be made. The application and plan shall be submitted on forms prescribed by the commissioner. The plan shall demonstrate that the requirements of the law will be met. Upon approval of the exemption request and plan for investment, purchases of the equipment may be made without payment of the sales or use tax. However, if the requisite investment is not made in the time period required, or the terms of the statute are not met, the taxpayer shall be subject to assessment for any tax, penalty or interest that would otherwise have been due;

          (I)  Material handling equipment and racking systems used in a warehouse and distribution facility, subject to all the requirements and conditions of subdivision (47)(H), except:

                (i)  The required investment in excess of ten million dollars ($10,000,000) may also be made in a previously occupied facility:

                     (a)  Through the purchase of a building, and/or the purchase of new equipment for use in the building no later than one (1) year after the purchase of the building; or

                     (b)  Through the purchase of new equipment for use in a leased building, not qualifying under subdivision (47)(I)(i)(a ), made no later than one (1) year after the date of the lease agreement; and

                (ii)  Any purchases exempted from tax for use in the facility described in this subdivision (47)(I) must be made no later than one (1) year after the purchase of the building under subdivision (47)(I)(i)(a ), or no later than one (1) year after the date of the lease agreement under subdivision (47)(I)(i)(b );

          (J)  “Industrial machinery” does not include machinery, apparatus and equipment, with all associated parts, appurtenances, accessories, repair parts, and necessary repair or taxable installation labor therefor, that is used in the preparation of food for immediate retail sale;

          (K)  “Industrial machinery” also includes any “computer”, “computer network”, “computer software”, or “computer system”, as defined by § 39-14-601, and any peripheral devices, including, but not limited to, hardware such as printers, plotters, external disc drives, modems, and telephone units, when such items are used in the operation of a qualified data center. For purposes of this subdivision (47)(K), “industrial machinery” includes repair parts, repair or installation services, and warranty or service contracts, purchased for such items used in the operation of a qualified data center; and

          (L)  “Industrial machinery” includes machinery, apparatus and equipment with all associated parts, appurtenances, accessories, repair parts and necessary repair or taxable installation labor therefor, that is necessary to and used primarily for the conversion of tangible personal property into taxable specified digital products for resale and consumption off the premises. “Industrial machinery” does not include machinery, apparatus or equipment, with all associated parts, appurtenances, accessories, repair parts and necessary repair or taxable installation labor therefor, that is used primarily for the storage or distribution of such specified digital products following such conversion;

     (48)  “International,” as used in connection with telecommunications services, means a telecommunications service that originates or terminates in the United States, and terminates or originates outside the United States, respectively. United States includes the District of Columbia and a United States territory or possession;

     (49)  “Interstate,” as used in connection with telecommunications services, means a telecommunications service that originates in one (1) United States state, or a United States territory or possession, and terminates in a different United States state or a United states territory or possession;

     (50)  “Intrastate,” as used in connection with telecommunications services, means a telecommunications service that originates in one (1) United States state or United States territory or possession, and terminates in the same United States state or United States territory or possession;

     (51)  “Layaway sale” means a transaction in which property is set aside for future delivery to a customer who makes a deposit, agrees to pay the balance of the purchase price over a period of time, and, at the end of the payment period, receives the property. An order is accepted for layaway by the seller, when the seller removes the property from normal inventory or clearly identifies the property as sold to the purchaser;

     (52)  “Lease or rental” means any transfer of possession or control of tangible personal property for a fixed or indeterminate term for consideration. A “lease or rental” may include future options to purchase or extend;

          (A)  “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 does not exceed the greater of one hundred dollars ($100) or one percent (1%) of the total required payments; or

                (iii)  Providing tangible personal property along with an operator for a fixed or indeterminate period of time. A condition of this exclusion is that the operator is necessary for the equipment to perform as designed. For the purpose of this subdivision (52), an operator must do more than maintain, inspect, or set-up the tangible personal property;

          (B)  “Lease or rental” includes agreements covering motor vehicles and trailers where the amount of consideration may be increased or decreased by reference to the amount realized upon sale or disposition of the property as defined in 26 U.S.C. § 7701(h)(1);

          (C)  This subdivision (52) shall be used for sales and use tax purposes regardless if a transaction is characterized as a lease or rental under generally accepted accounting principles, the Internal Revenue Code, or title 47, chapter 2A, or other federal, state or local law;

          (D)  This subdivision (52) shall be applied only prospectively from the date of adoption and shall have no retroactive impact on existing leases or rentals;

     (53)  “Livestock and poultry feed” means and includes all grains, minerals, salts, proteins, fats, fibers and all vitamins, acids and drugs used and mixed with such ingredients as a growth stimulant, disease preventive, to stimulate feed conversion and make a complete feed;

     (54)  “Local tax jurisdiction” means a geographic area where the same local option tax, either county tax or a combination of county and municipal tax, applies;

     (55)  “Mobile telecommunications service” means the same as that term is defined in the Mobile Telecommunications Sourcing Act, Public Law 106-252, compiled in 4 U.S.C. § 124(7);

     (56)  “Mobility enhancing equipment” means equipment, including repair and replacement parts to the equipment, but does not include durable medical equipment that:

          (A)  Is primarily and customarily used to provide or increase the ability to move from one place to another and that is appropriate for use either in a home or a motor vehicle;

          (B)  Is not generally used by persons with normal mobility; and

          (C)  Does not include any motor vehicle or equipment on a motor vehicle normally provided by a motor vehicle manufacturer;

     (57)  “Model 1 seller” means a seller that has selected a certified service provider as its agent to perform all of the seller's sales and use tax functions, other than the seller's obligation to remit tax on its own purchases;

     (58)  “Model 2 seller” means a seller that has selected a certified automated system to perform part of its sales and use tax functions, but retains responsibility for remitting the tax;

     (59)  “Model 3 seller” means a seller that has sales in at least five states that are members of the Streamlined Sales and Use Tax Agreement, has total annual sales revenue of at least five hundred million dollars ($500,000,000), has a proprietary system that calculates the amount of tax due each jurisdiction, and has entered into a performance agreement with the member states that establishes a tax performance standard for the seller. As used in this subdivision (59), a seller includes an affiliated group of sellers using the same proprietary system;

     (60)  “OEM headquarters company” means an original equipment manufacturer that is engaged in the business of manufacturing motor vehicles and qualifies to receive the credit provided in § 67-6-224, or any affiliate thereof. For purposes of this subdivision (60), “affiliate” has the same meaning as provided in § 67-4-2004;

     (61)  “OEM headquarters company vehicle” means any motor vehicle subject to registration in accordance with title 55 that is owned by an OEM headquarters company, whether used for sales or service training, advertising, quality control, testing, evaluation or such other uses as approved by the commissioner, and, further, including motor vehicles provided by the OEM headquarters company for use by eligible employees and their eligible family members in accordance with policies established by the OEM headquarters company and approved by the commissioner;

     (62)  (A)  “Over-the-counter-drug” means a drug that contains a label that identifies the product as a drug as required by 21 C.F.R. 201.66. The “over-the-counter-drug” label includes:

                (i)  A drug facts panel; or

                (ii)  A statement of the active ingredients, with a list of those ingredients contained in the compound, substance or preparation;

          (B)  “Over-the-counter-drug” does not include grooming and hygiene products;

     (63)  “Permanent location” does not include any booths or space located at a flea market, antique mall, craft show, antique show, gun show, auto show or any similar type business;

     (64)  “Person” includes any individual, firm, co-partnership, joint venture, association, corporation, estate, trust, business trust, receiver, syndicate, any governmental agency whose services are essentially a private commercial concern, or other group or combination acting as a unit, in the plural as well as the singular number. “Person” further includes any political subdivision or governmental agency, including electric membership corporations or cooperatives, and utility districts, to the extent that such agency sells at retail, rents or furnishes any of the things or services taxable under this chapter;

     (65)  “Place of primary use” means the street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. In the case of mobile telecommunications service, “place of primary use” shall be within the licensed service area of the home service provider;

     (66)  “Preliminary artwork” means tangible personal property and digital equivalents that are produced by an advertising agency in the course of providing advertising services solely for the purpose of conveying concepts or ideas or demonstrating an idea or message to a client and includes, but is not limited to concept sketches, illustrations, drawings, paintings, models, photographs, storyboards or similar materials;

     (67)  “Prepaid calling service” means the right to access exclusively telecommunications services that must be paid for in advance and that enable the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount;

     (68)  “Prepaid wireless calling service” means a telecommunications service that provides the right to utilize mobile wireless service, as well as other nontelecommunications services, including the download of digital products delivered electronically, content and ancillary services that must be paid for in advance that is sold in predetermined units of dollars of which the number declines with use in a known amount;

     (69)  (A)  “Prepared food” means:

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

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

                (iii)  Food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport the food;

          (B)  “Prepared food” in subdivision (69)(A)(ii) does not include food that is only cut, repackaged, or pasteurized by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the food and drug administration (FDA) in chapter 3, § 401.11 of the FDA’s food code so as to prevent food borne illnesses;

     (70)  “Prescription” means an order, formula or recipe issued in any form of oral, written, electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of this state;

     (71)  “Prewritten computer software” means computer software, including prewritten upgrades, that is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of two (2) or more prewritten computer software programs or prewritten portions of computer software does not cause the combination to be other than prewritten computer software. “Prewritten computer software” includes software designed and developed by the author or other creator to the specifications of a specific purchaser when it is sold to a person other than the purchaser. Where a person modifies or enhances computer software of which the person is not the author or creator, the person shall be deemed to be the author or creator only of that person's modifications or enhancements. “Prewritten computer software” or a prewritten portion of the computer software that is modified or enhanced to any degree, where the modification or enhancement is designed and developed to the specifications of a specific purchaser, remains prewritten computer software; provided, however, that where there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for the modification or enhancement, the modification or enhancement shall not constitute prewritten computer software;

     (72)  “Private communication service” means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels;

     (73)  (A)  “Prosthetic device” means a replacement, corrective, or supportive device including repair and replacement parts for the replacement, corrective, or supportive device worn on or in the body to:

                (i)  Artificially replace a missing portion of the body;

                (ii)  Prevent or correct physical deformity or malfunction; or

                (iii)  Support a weak or deformed portion of the body;

          (B)  “Prosthetic device” does not include:

                (i)  Corrective eyeglasses; or

                (ii)  Contact lenses;

     (74)  “Protective equipment” means items for human wear, designed as protection of the wearer against injury or disease or as protection against damage or injury of other persons or property, but not suitable for general use;

     (75)  “Purchase price” applies to the measure subject to use tax and has the same meaning as sales price;

     (76)  “Qualified data center” means a data center that has made a required capital investment in excess of two hundred fifty million dollars ($250,000,000) during an investment period not to exceed not to exceed three (3) years and that creates at least twenty-five (25) net new full-time employee jobs during the investment period paying at least one hundred fifty percent (150%) of the states' average occupational wage as defined in § 67-4-2004. For purposes of this subdivision (76), “required capital investment” means an increase of a business investment in real property, tangible personal property or computer software owned or leased in the state, valued in accordance with generally accepted accounting principles. A capital investment shall be deemed to have been made as of the date of payment or the date the taxpayer enters into a legally binding commitment or contract for purchase or construction. For purposes of this subdivision (76), “full-time employee job” means a permanent, rather than seasonal or part-time employment position for at least twelve (12) consecutive months to a person for at least thirty-seven and one half (37 ½) hours per week with minimum health care, as described in title 56, chapter 7, part 22. The three-year period for making the required capital investment provided for in this subdivision (76) may be extended by the commissioner of economic and community development for a reasonable period, not to exceed four (4) years, for good cause shown. For purposes of this subdivision (76), “good cause” includes, but is not limited to, a determination by the commissioner of economic and community development that the capital investment is a result of the exemption for industrial machinery used by a qualified data cente