S.B. 218

1

AMENDMENTS TO TOURISM, RECREATION,
2 CULTURAL, AND CONVENTION FACILITIES TAX
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Wayne L. Niederhauser
6 House Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill amends the Tourism, Recreation, Cultural, and Convention Facilities Tax part
11 and related provisions.
12 Highlighted Provisions:
13 This bill:
14 . modifies and repeals definitions;
15 . repeals the authority for a county to impose a tax on certain food sold by a
16 restaurant;
17 . authorizes a county to impose a sales and use tax on the same transactions upon
18 which the state sales and use tax is imposed, except for certain:
19 . transactions relating to food; or
20 . sales by remote sellers;
21 . addresses the transactions subject to tax under the Tourism, Recreation, Cultural,
22 and Convention Facilities part;
23 . addresses the distribution of the sales and use tax;
24 . addresses the collection of an administrative fee by the State Tax Commission;
25 . requires the Revenue and Taxation Interim Committee to conduct a study relating to
26 the distribution of the sales and use tax; and
27 . makes technical changes.

28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 This bill provides effective dates.
32 Utah Code Sections Affected:
33 AMENDS:
34 59-12-102, as last amended by Laws of Utah 2007, Chapters 9, 214, 224, and 288
35 59-12-602, as last amended by Laws of Utah 1995, Chapter 248
36 59-12-603, as last amended by Laws of Utah 2007, Chapters 3, 9, and 219
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 59-12-102 is amended to read:
40 59-12-102. Definitions.
41 As used in this chapter:
42 (1) (a) "Admission or user fees" includes season passes.
43 (b) "Admission or user fees" does not include annual membership dues to private
44 organizations.
45 (2) "Agreement" means the Streamlined Sales and Use Tax Agreement described in
46 Section 59-12-102.1 .
47 (3) "Agreement combined tax rate" means the sum of the tax rates:
48 (a) listed under Subsection (4); and
49 (b) that are imposed within a local taxing jurisdiction.
50 (4) "Agreement sales and use tax" means a tax imposed under:
51 (a) Subsection 59-12-103 (2)(a)(i);
52 (b) Subsection 59-12-103 (2)(b)(i);
53 (c) Subsection 59-12-103 (2)(c)(i);
54 (d) Subsection 59-12-103 (2)(d)(i);
55 (e) Subsection 59-12-103 (2)(e)(ii)(A);
56 (f) Subsection 59-12-103 (2)(e)(iii)(A);
57 (g) Section 59-12-204 ;
58 (h) Section 59-12-401 ;

59 (i) Section 59-12-402 ;
60 (j) Section 59-12-501 ;
61 (k) Section 59-12-502 ;
62 (l) Subsection 59-12-603 (1)(a)(ii)(B);
63 [(l)] (m) Section 59-12-703 ;
64 [(m)] (n) Section 59-12-802 ;
65 [(n)] (o) Section 59-12-804 ;
66 [(o)] (p) Section 59-12-1001 ;
67 [(p)] (q) Section 59-12-1102 ;
68 [(q)] (r) Section 59-12-1302 ;
69 [(r)] (s) Section 59-12-1402 ;
70 [(s)] (t) Section 59-12-1503 ; or
71 [(t)] (u) Section 59-12-1703 .
72 (5) "Aircraft" is as defined in Section 72-10-102 .
73 (6) "Alcoholic beverage" means a beverage that:
74 (a) is suitable for human consumption; and
75 (b) contains .5% or more alcohol by volume.
76 (7) "Area agency on aging" is as defined in Section 62A-3-101 .
77 (8) "Assisted amusement device" means an amusement device, skill device, or ride
78 device that is started and stopped by an individual:
79 (a) who is not the purchaser or renter of the right to use or operate the amusement
80 device, skill device, or ride device; and
81 (b) at the direction of the seller of the right to use the amusement device, skill device,
82 or ride device.
83 (9) "Assisted cleaning or washing of tangible personal property" means cleaning or
84 washing of tangible personal property if the cleaning or washing labor is primarily performed
85 by an individual:
86 (a) who is not the purchaser of the cleaning or washing of the tangible personal
87 property; and
88 (b) at the direction of the seller of the cleaning or washing of the tangible personal
89 property.

90 (10) "Authorized carrier" means:
91 (a) in the case of vehicles operated over public highways, the holder of credentials
92 indicating that the vehicle is or will be operated pursuant to both the International Registration
93 Plan and the International Fuel Tax Agreement;
94 (b) in the case of aircraft, the holder of a Federal Aviation Administration operating
95 certificate or air carrier's operating certificate; or
96 (c) in the case of locomotives, freight cars, railroad work equipment, or other rolling
97 stock, the holder of a certificate issued by the United States Surface Transportation Board.
98 (11) (a) Except as provided in Subsection (11)(b), "biomass energy" means any of the
99 following that is used as the primary source of energy to produce fuel or electricity:
100 (i) material from a plant or tree; or
101 (ii) other organic matter that is available on a renewable basis, including:
102 (A) slash and brush from forests and woodlands;
103 (B) animal waste;
104 (C) methane produced:
105 (I) at landfills; or
106 (II) as a byproduct of the treatment of wastewater residuals;
107 (D) aquatic plants; and
108 (E) agricultural products.
109 (b) "Biomass energy" does not include:
110 (i) black liquor;
111 (ii) treated woods; or
112 (iii) biomass from municipal solid waste other than methane produced:
113 (A) at landfills; or
114 (B) as a byproduct of the treatment of wastewater residuals.
115 (12) (a) "Bundled transaction" means the sale of two or more items of tangible personal
116 property if:
117 (i) one or more of the items of tangible personal property is food and food ingredients;
118 and
119 (ii) the items of tangible personal property are:
120 (A) distinct and identifiable; and

121 (B) sold for one price that is not itemized.
122 (b) "Bundled transaction" does not include the sale of tangible personal property if the
123 sales price varies, or is negotiable, on the basis of the selection by the purchaser of the items of
124 tangible personal property included in the transaction.
125 (c) For purposes of Subsection (12)(a)(ii)(A), tangible personal property that is distinct
126 and identifiable does not include:
127 (i) packaging that:
128 (A) accompanies the sale of the tangible personal property; and
129 (B) is incidental or immaterial to the sale of the tangible personal property;
130 (ii) tangible personal property provided free of charge with the purchase of another
131 item of tangible personal property; or
132 (iii) an item of tangible personal property included in the definition of "purchase
133 price."
134 (d) For purposes of Subsection (12)(c)(ii), an item of tangible personal property is
135 provided free of charge with the purchase of another item of tangible personal property if the
136 sales price of the purchased item of tangible personal property does not vary depending on the
137 inclusion of the tangible personal property provided free of charge.
138 (13) "Certified automated system" means software certified by the governing board of
139 the agreement in accordance with Section 59-12-102.1 that:
140 (a) calculates the agreement sales and use tax imposed within a local taxing
141 jurisdiction:
142 (i) on a transaction; and
143 (ii) in the states that are members of the agreement;
144 (b) determines the amount of agreement sales and use tax to remit to a state that is a
145 member of the agreement; and
146 (c) maintains a record of the transaction described in Subsection (13)(a)(i).
147 (14) "Certified service provider" means an agent certified:
148 (a) by the governing board of the agreement in accordance with Section 59-12-102.1 ;
149 and
150 (b) to perform all of a seller's sales and use tax functions for an agreement sales and
151 use tax other than the seller's obligation under Section 59-12-107.4 to remit a tax on the seller's

152 own purchases.
153 (15) (a) Subject to Subsection (15)(b), "clothing" means all human wearing apparel
154 suitable for general use.
155 (b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
156 commission shall make rules:
157 (i) listing the items that constitute "clothing"; and
158 (ii) that are consistent with the list of items that constitute "clothing" under the
159 agreement.
160 (16) "Coal-to-liquid" means the process of converting coal into a liquid synthetic fuel.
161 (17) "Commercial use" means the use of gas, electricity, heat, coal, fuel oil, or other
162 fuels that does not constitute industrial use under Subsection (42) or residential use under
163 Subsection (80).
164 (18) (a) "Common carrier" means a person engaged in or transacting the business of
165 transporting passengers, freight, merchandise, or other property for hire within this state.
166 (b) (i) "Common carrier" does not include a person who, at the time the person is
167 traveling to or from that person's place of employment, transports a passenger to or from the
168 passenger's place of employment.
169 (ii) For purposes of Subsection (18)(b)(i), in accordance with Title 63, Chapter 46a,
170 Utah Administrative Rulemaking Act, the commission may make rules defining what
171 constitutes a person's place of employment.
172 (19) "Component part" includes:
173 (a) poultry, dairy, and other livestock feed, and their components;
174 (b) baling ties and twine used in the baling of hay and straw;
175 (c) fuel used for providing temperature control of orchards and commercial
176 greenhouses doing a majority of their business in wholesale sales, and for providing power for
177 off-highway type farm machinery; and
178 (d) feed, seeds, and seedlings.
179 (20) "Computer" means an electronic device that accepts information:
180 (a) (i) in digital form; or
181 (ii) in a form similar to digital form; and
182 (b) manipulates that information for a result based on a sequence of instructions.

183 (21) "Computer software" means a set of coded instructions designed to cause:
184 (a) a computer to perform a task; or
185 (b) automatic data processing equipment to perform a task.
186 (22) "Construction materials" means any tangible personal property that will be
187 converted into real property.
188 (23) "Delivered electronically" means delivered to a purchaser by means other than
189 tangible storage media.
190 (24) (a) "Delivery charge" means a charge:
191 (i) by a seller of:
192 (A) tangible personal property; or
193 (B) services; and
194 (ii) for preparation and delivery of the tangible personal property or services described
195 in Subsection (24)(a)(i) to a location designated by the purchaser.
196 (b) "Delivery charge" includes a charge for the following:
197 (i) transportation;
198 (ii) shipping;
199 (iii) postage;
200 (iv) handling;
201 (v) crating; or
202 (vi) packing.
203 (25) (a) "Dental prosthesis" means the following if fabricated in a laboratory:
204 (i) a bridge;
205 (ii) a crown if that crown covers at least 75% of a tooth structure;
206 (iii) a denture;
207 (iv) an implant;
208 (v) an orthodontic device designed to:
209 (A) retain the position or spacing of teeth; and
210 (B) replace a missing tooth;
211 (vi) a partial denture; or
212 (vii) a device similar to Subsections (25)(a)(i) through (vi).
213 (b) "Dental prosthesis" does not include an appliance or device, other than a device

214 described in Subsection (25)(a), if that appliance or device is used in orthodontic therapy to
215 apply force to the teeth and their supporting structures to:
216 (i) produce changes in their relationship to each other; and
217 (ii) control their growth and development.
218 (26) "Dietary supplement" means a product, other than tobacco, that:
219 (a) is intended to supplement the diet;
220 (b) contains one or more of the following dietary ingredients:
221 (i) a vitamin;
222 (ii) a mineral;
223 (iii) an herb or other botanical;
224 (iv) an amino acid;
225 (v) a dietary substance for use by humans to supplement the diet by increasing the total
226 dietary intake; or
227 (vi) a concentrate, metabolite, constituent, extract, or combination of any ingredient
228 described in Subsections (26)(b)(i) through (v);
229 (c) (i) except as provided in Subsection (26)(c)(ii), is intended for ingestion in:
230 (A) tablet form;
231 (B) capsule form;
232 (C) powder form;
233 (D) softgel form;
234 (E) gelcap form; or
235 (F) liquid form; or
236 (ii) notwithstanding Subsection (26)(c)(i), if the product is not intended for ingestion in
237 a form described in Subsections (26)(c)(i)(A) through (F), is not represented:
238 (A) as conventional food; and
239 (B) for use as a sole item of:
240 (I) a meal; or
241 (II) the diet; and
242 (d) is required to be labeled as a dietary supplement:
243 (i) identifiable by the "Supplemental Facts" box found on the label; and
244 (ii) as required by 21 C.F.R. Sec. 101.36.

245 (27) (a) "Direct mail" means printed material delivered or distributed by United States
246 mail or other delivery service:
247 (i) to:
248 (A) a mass audience; or
249 (B) addressees on a mailing list provided by a purchaser of the mailing list; and
250 (ii) if the cost of the printed material is not billed directly to the recipients.
251 (b) "Direct mail" includes tangible personal property supplied directly or indirectly by a
252 purchaser to a seller of direct mail for inclusion in a package containing the printed material.
253 (c) "Direct mail" does not include multiple items of printed material delivered to a
254 single address.
255 (28) (a) "Disposable home medical equipment or supplies" means medical equipment
256 or supplies that:
257 (i) cannot withstand repeated use; and
258 (ii) are purchased by, for, or on behalf of a person other than:
259 (A) a health care facility as defined in Section 26-21-2 ;
260 (B) a health care provider as defined in Section 78-14-3 ;
261 (C) an office of a health care provider described in Subsection (28)(a)(ii)(B); or
262 (D) a person similar to a person described in Subsections (28)(a)(ii)(A) through (C).
263 (b) "Disposable home medical equipment or supplies" does not include:
264 (i) a drug;
265 (ii) durable medical equipment;
266 (iii) a hearing aid;
267 (iv) a hearing aid accessory;
268 (v) mobility enhancing equipment; or
269 (vi) tangible personal property used to correct impaired vision, including:
270 (A) eyeglasses; or
271 (B) contact lenses.
272 (c) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
273 commission may by rule define what constitutes medical equipment or supplies.
274 (29) (a) "Drug" means a compound, substance, or preparation, or a component of a
275 compound, substance, or preparation that is:

276 (i) recognized in:
277 (A) the official United States Pharmacopoeia;
278 (B) the official Homeopathic Pharmacopoeia of the United States;
279 (C) the official National Formulary; or
280 (D) a supplement to a publication listed in Subsections (29)(a)(i)(A) through (C);
281 (ii) intended for use in the:
282 (A) diagnosis of disease;
283 (B) cure of disease;
284 (C) mitigation of disease;
285 (D) treatment of disease; or
286 (E) prevention of disease; or
287 (iii) intended to affect:
288 (A) the structure of the body; or
289 (B) any function of the body.
290 (b) "Drug" does not include:
291 (i) food and food ingredients;
292 (ii) a dietary supplement;
293 (iii) an alcoholic beverage; or
294 (iv) a prosthetic device.
295 (30) (a) Except as provided in Subsection (30)(c), "durable medical equipment" means
296 equipment that:
297 (i) can withstand repeated use;
298 (ii) is primarily and customarily used to serve a medical purpose;
299 (iii) generally is not useful to a person in the absence of illness or injury; and
300 (iv) is not worn in or on the body.
301 (b) "Durable medical equipment" includes parts used in the repair or replacement of the
302 equipment described in Subsection (30)(a).
303 (c) Notwithstanding Subsection (30)(a), "durable medical equipment" does not include
304 mobility enhancing equipment.
305 (31) "Electronic" means:
306 (a) relating to technology; and

307 (b) having:
308 (i) electrical capabilities;
309 (ii) digital capabilities;
310 (iii) magnetic capabilities;
311 (iv) wireless capabilities;
312 (v) optical capabilities;
313 (vi) electromagnetic capabilities; or
314 (vii) capabilities similar to Subsections (31)(b)(i) through (vi).
315 (32) "Employee" is as defined in Section 59-10-401 .
316 (33) "Fixed guideway" means a public transit facility that uses and occupies:
317 (a) rail for the use of public transit; or
318 (b) a separate right-of-way for the use of public transit.
319 (34) (a) "Food and food ingredients" means substances:
320 (i) regardless of whether the substances are in:
321 (A) liquid form;
322 (B) concentrated form;
323 (C) solid form;
324 (D) frozen form;
325 (E) dried form; or
326 (F) dehydrated form; and
327 (ii) that are:
328 (A) sold for:
329 (I) ingestion by humans; or
330 (II) chewing by humans; and
331 (B) consumed for the substance's:
332 (I) taste; or
333 (II) nutritional value.
334 (b) "Food and food ingredients" includes an item described in Subsection (66)(b)(iii).
335 (c) "Food and food ingredients" does not include:
336 (i) an alcoholic beverage;
337 (ii) tobacco; or

338 (iii) prepared food.
339 (35) (a) "Fundraising sales" means sales:
340 (i) (A) made by a school; or
341 (B) made by a school student;
342 (ii) that are for the purpose of raising funds for the school to purchase equipment,
343 materials, or provide transportation; and
344 (iii) that are part of an officially sanctioned school activity.
345 (b) For purposes of Subsection (35)(a)(iii), "officially sanctioned school activity"
346 means a school activity:
347 (i) that is conducted in accordance with a formal policy adopted by the school or school
348 district governing the authorization and supervision of fundraising activities;
349 (ii) that does not directly or indirectly compensate an individual teacher or other
350 educational personnel by direct payment, commissions, or payment in kind; and
351 (iii) the net or gross revenues from which are deposited in a dedicated account
352 controlled by the school or school district.
353 (36) "Geothermal energy" means energy contained in heat that continuously flows
354 outward from the earth that is used as the sole source of energy to produce electricity.
355 (37) "Governing board of the agreement" means the governing board of the agreement
356 that is:
357 (a) authorized to administer the agreement; and
358 (b) established in accordance with the agreement.
359 (38) (a) For purposes of Subsection 59-12-104 (41), "governmental entity" means:
360 (i) the executive branch of the state, including all departments, institutions, boards,
361 divisions, bureaus, offices, commissions, and committees;
362 (ii) the judicial branch of the state, including the courts, the Judicial Council, the
363 Office of the Court Administrator, and similar administrative units in the judicial branch;
364 (iii) the legislative branch of the state, including the House of Representatives, the
365 Senate, the Legislative Printing Office, the Office of Legislative Research and General
366 Counsel, the Office of the Legislative Auditor General, and the Office of the Legislative Fiscal
367 Analyst;
368 (iv) the National Guard;

369 (v) an independent entity as defined in Section 63E-1-102 ; or
370 (vi) a political subdivision as defined in Section 17B-1-102 .
371 (b) "Governmental entity" does not include the state systems of public and higher
372 education, including:
373 (i) a college campus of the Utah College of Applied Technology;
374 (ii) a school;
375 (iii) the State Board of Education;
376 (iv) the State Board of Regents; or
377 (v) a state institution of higher education as defined in Section 53B-3-102 .
378 (39) (a) "Hearing aid" means:
379 (i) an instrument or device having an electronic component that is designed to:
380 (A) (I) improve impaired human hearing; or
381 (II) correct impaired human hearing; and
382 (B) (I) be worn in the human ear; or
383 (II) affixed behind the human ear;
384 (ii) an instrument or device that is surgically implanted into the cochlea; or
385 (iii) a telephone amplifying device.
386 (b) "Hearing aid" does not include:
387 (i) except as provided in Subsection (39)(a)(i)(B) or (39)(a)(ii), an instrument or device
388 having an electronic component that is designed to be worn on the body;
389 (ii) except as provided in Subsection (39)(a)(iii), an assistive listening device or system
390 designed to be used by one individual, including:
391 (A) a personal amplifying system;
392 (B) a personal FM system;
393 (C) a television listening system; or
394 (D) a device or system similar to a device or system described in Subsections
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