First Substitute H.B. 96

Representative Patrice M. Arent proposes the following substitute bill:

1 PROHIBITION OF SALE OR USE OF CERTAIN
2 SOFTWARE PROGRAMS
3 2012 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Patrice M. Arent
6 Senate Sponsor: John L. Valentine
7 Cosponsor:Wayne A. Harper 8
9 LONG TITLE
10 General Description:
11 This bill modifies the Criminal Code by prohibiting the use, purchase, installation,
12 transfer, or sale of any automated sales suppression device or phantomware.
13 Highlighted Provisions:
14 This bill:
15 . provides definitions, including defining automated sales suppression device and
16 phantomware;
17 . prohibits a person from knowingly selling, purchasing, installing, transferring,
18 using, or possessing any automated sales suppression device or phantomware;
19 . provides that the penalty for a first offense is a third degree felony and any
20 subsequent offense is a second degree felony; and
21 . provides an additional penalty of a fine not to exceed twice the amount of the
22 applicable taxes that would otherwise be due for any person convicted of violating
23 these provisions.

24 Money Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 This bill takes effect on July 1, 2012.
28 Utah Code Sections Affected:
29 ENACTS:
30 76-6-1301, Utah Code Annotated 1953
31 76-6-1302, Utah Code Annotated 1953
32 76-6-1303, Utah Code Annotated 1953
33
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 76-6-1301 is enacted to read:
36 Part 13. Utah Automated Sales Suppression Device Act
37 76-6-1301. Title.
38 This part is known as the "Utah Automated Sales Suppression Device Act."
39 Section 2. Section 76-6-1302 is enacted to read:
40 76-6-1302. Definitions.
41 As used in this part:
42 (1) "Automated sales suppression device" means:
43 (a) a software program that falsifies the electronic records of electronic cash registers
44 or any other point-of-sale systems, including transaction data and transaction reports; or
45 (b) a general reference to a device that allows for, creates, or supports an automated
46 sales suppression system or any kind of phantomware.
47 (2) "Electronic cash register" means any device, wherever located, that maintains a
48 transaction register or supporting documents by means of an electronic device or computer
49 system designed to record transaction data for the purpose of computing, compiling, or
50 processing retail, wholesale, or any other sales transaction data.
51 (3) "Person" means an individual, business, or entity.
52 (4) "Phantomware" means a programming option that:
53 (a) is pre-installed, installed at a later time, or otherwise embedded in the operating
54 system of an electronic cash register or hardwired into the electronic cash register; and

55 (b) can be used to create a virtual alternate register or to eliminate or manipulate
56 transaction records that may or may not be preserved in digital formats in order to represent a
57 manipulated record or records of transactions in the electronic cash register.
58 (5) "Transaction data" includes items purchased by a customer, the price for each item,
59 a taxability determination for each item, a segregated tax amount for each of the taxed items,
60 the amount of cash or credit tendered, the net amount returned to the customer in change or in a
61 refund, the date and time of the purchase, the name, address, and identification number of the
62 vendor, and the receipt or invoice number of the transaction.
63 (6) "Transaction report" means a report that includes the sales, taxes collected, media
64 totals, and discount voids at an electronic cash register and that is generated at the end of a day
65 or shift. The report is printed on cash register tape or is stored electronically.
66 Section 3. Section 76-6-1303 is enacted to read:
67 76-6-1303. Possession, sale, or use of automated sales suppression device unlawful
68 -- Penalties.
69 (1) It is a third degree felony to willfully or knowingly sell, purchase, install, transfer,
70 use, or possess in this state any automated sales suppression device or phantomware, except
71 that any second or subsequent violation of this Subsection (1) is a second degree felony.
72 (2) Notwithstanding Section 76-3-301 , any person convicted of violating Subsection
73 (1) may be fined not more than twice the amount of the applicable taxes that would otherwise
74 be due, but for the use of the automated sales suppression device or phantomware.
75 (3) Any person convicted of a violation of Subsection (1):
76 (a) is liable for all applicable taxes, penalties under Section 59-1-401 , and interest
77 under Section 59-1-402 that would otherwise be due, but for the use of the automated sales
78 suppression device or phantomware to evade the payment of taxes; and
79 (b) shall disgorge all profits associated with the sale or use of an automated sales
80 suppression device or phantomware.
81 (4) An automated sales suppression device and any device containing an automated
82 sales suppression device is contraband and subject to forfeiture under Title 24, Chapter 1, Utah
83 Uniform Forfeiture Procedures Act.
84 Section 4. Effective date.
85 This bill takes effect on July 1, 2012.