HRS §238-1 Definitions, generally
238-1. Definitions, generally
Whenever used in this chapter, unless otherwise required by the context:
"General excise tax law" means
chapter 237, as amended from time to time.
"Import" (or any nounal, verbal,
adverbial, adjective, or other equivalent of the term) includes:
(1) The importation into the State of property,
services, or contracting owned, purchased from an unlicensed seller, or however
acquired, from any other part of the United States or its possessions or from
any foreign country, whether in interstate or foreign commerce, or both;
(2) The sale and delivery of property owned,
purchased from an unlicensed seller, or however acquired, by a seller who is or
should be licensed under the general excise tax law from an out-of-state
location to an in-state purchaser, regardless of the free on board point or the
place where title to the property transfers to the purchaser; and
(3) The sale of tangible personal property,
intangible property, or services by a marketplace facilitator with a valid
license issued pursuant to section 237-9 on behalf of an unlicensed seller for
delivery to or use by a purchaser in the State.
"Marketplace facilitator" shall have
the same meaning as in section 237-1.
"Overhead" means continuous or
general costs occurring in the normal course of a business, including but not
limited to costs for labor, rent, taxes, royalties, interest, discounts paid,
insurance, lighting, heating, cooling, accounting, legal fees, equipment and facilities,
telephone systems, depreciation, and amortization.
"Person", "business", "engaging
in business", "retailer", "wholesaler", "jobber",
and "contractor" have the meanings defined by chapter 237.
"Price" means the total amount for
which property, services, or contracting are purchased, valued in money,
whether paid in money or otherwise, and wheresoever paid; provided that cash
discounts allowed and taken on sales shall not be included.
"Property" means tangible personal
property, intangible property, and prepaid telephone calling services but does
not include:
(1) Newspapers or other periodical publications
purchased on the subscription plan, issued at stated intervals as frequently as
four times a year, and of the class admitted to the United States mails as
second class matter under the laws and regulations governing the postal service
on January 1, 1965;
(2) Securities as defined in title 15 United States
Code section 78c or similar laws of jurisdictions outside the United States;
(3) Commodities for future delivery and other
agreements, options, and rights as defined in title 7 United States Code
section 2 that are permitted to be traded on a board of trade designated by the
Commodities Futures Trading Commission under the Commodity Exchange Act;
(4) Evidence of indebtedness;
(5) Interest in land; or
(6) Dividends as defined by chapter 235.
"Purchase" and "sale" means
any transfer, exchange, or barter, conditional or otherwise, in any manner or
by any means, wheresoever consummated, of property, services, or contracting
for a consideration.
"Purchaser" means any person
purchasing property, services, or contracting and "importer" means
any person importing property, services, or contracting, regardless if at the
time of importation, the property, services, or contracting is owned by the
importer, purchased from an unlicensed seller, or however acquired; provided
that the terms "purchaser" and "importer" shall not include
the State, its political subdivisions, or wholly owned agencies or
instrumentalities of the State or a political subdivision; or the United
States, its wholly owned agencies or instrumentalities, or any person immune
from the tax imposed by this chapter under the Constitution and laws of the
United States but the terms shall include national banks.
"Representation" refers to any or all
of the following:
(1) A seller being present in the State;
(2) A seller having in the State a salesperson,
commission agent, manufacturer's representative, broker, or other person who is
authorized or employed by the seller to assist the seller in selling property,
services, or contracting for use or consumption in the State, by procuring
orders for the sales, making collections or deliveries, or otherwise; and
(3) A seller having in the State a person upon whom
process directed to the seller from the courts of the State may be served,
including the director of commerce and consumer affairs and the deputy director
in the cases provided in section 414-64.
"Seller" means any person engaged in
the business of selling property, services, or contracting, wheresoever
engaged, but does not include the United States or its wholly owned agencies or
instrumentalities other than national banks, the State or a political subdivision
thereof, or wholly owned agencies or instrumentalities of the State or a
political subdivision.
"Service business or calling"
includes all activities engaged in for other persons for a consideration that
involve the rendering of a service as distinguished from the sale of property
or the production and sale of property. "Service business or calling"
includes professional services, but does not include services rendered by an
employee to the employee's employer.
"Unlicensed seller" means any seller
who, with respect to the particular sale, is not subject to the tax imposed by
chapter 237, whether or not the seller holds a license under that chapter, but
does not include any seller with respect to any sale which is expressly exempted
from the tax imposed by chapter 237.
"Use" (and any nounal, verbal,
adjectival, adverbial, and other equivalent form of the term) herein used
interchangeably means any use, whether the use is of such nature as to cause
the property, services, or contracting to be appreciably consumed or not, or
the keeping of the property or services for such use or for sale, the exercise
of any right or power over tangible or intangible personal property incident to
the ownership of that property, and shall include control over tangible or
intangible property by a seller who is licensed or who should be licensed under
chapter 237, who directs the importation of the property into the State for
sale and delivery to a purchaser in the State, liability and free on board
(FOB) to the contrary notwithstanding, regardless of where title passes, but
the term "use" shall not include:
(1) Temporary use of property, not of a perishable or
quickly consumable nature, where the property is imported into the State for
temporary use (not sale) therein by the person importing the same and is not
intended to be, and is not, kept permanently in the State. For example,
without limiting the generality of the foregoing language:
(A) In the case of a contractor importing
permanent equipment for the performance of a construction contract, with intent
to remove, and who does remove, the equipment out of the State upon completing
the contract;
(B) In the case of moving picture films
imported for use in theaters in the State with intent or under contract to
transport the same out of the State after completion of such use; and
(C) In the case of a transient visitor
importing an automobile or other belongings into the State to be used by the
transient visitor while therein but which are to be used and are removed upon
the transient visitor's departure from the State;
(2) Use by the taxpayer of property acquired by the
taxpayer solely by way of gift;
(3) Use which is limited to the receipt of articles
and the return thereof, to the person from whom acquired, immediately or within
a reasonable time either after temporary trial or without trial;
(4) Use of goods imported into the State by the owner
of a vessel or vessels engaged in interstate or foreign commerce and held for
and used only as ship stores for the vessels;
(5) The use or keeping for use of household goods,
personal effects, and private automobiles imported into the State for
nonbusiness use by a person who:
(A) Acquired them in another state,
territory, district, or country;
(B) At the time of the acquisition was a bona
fide resident of another state, territory, district, or country;
(C) Acquired the property for use outside the
State; and
(D) Made actual and substantial use thereof
outside this State;
provided that as to an article acquired less than
three months prior to the time of its importation into the State it shall be
presumed, until and unless clearly proved to the contrary, that it was acquired
for use in the State and that its use outside the State was not actual and
substantial;
(6) The leasing or renting of any aircraft or the
keeping of any aircraft solely for leasing or renting to lessees or renters
using the aircraft for commercial transportation of passengers and goods or the
acquisition or importation of any such aircraft or aircraft engines by any
lessee or renter engaged in interstate air transportation. For purposes of
this paragraph, "leasing" includes all forms of lease, regardless of
whether the lease is an operating lease or financing lease. The definition of "interstate
air transportation" is the same as in 49 U.S.C. 40102;
(7) The use of oceangoing vehicles for passenger or
passenger and goods transportation from one point to another within the State
as a public utility as defined in chapter 269;
(8) The use of material, parts, or tools imported or
purchased by a person licensed under chapter 237 which are used for aircraft
service and maintenance, or the construction of an aircraft service and
maintenance facility as those terms are defined in section 237-24.9;
(9) The use of services or contracting imported for
resale where the contracting or services are for resale, consumption, or use
outside the State pursuant to section 237-29.53(a); and
(10) The use of property, services, or contracting
imported by foreign diplomats and consular officials who are holding cards
issued or authorized by the United States Department of State granting them an
exemption from state taxes.
With regard to purchases made and distributed
under the authority of chapter 421, a cooperative association shall be deemed
the user thereof.
"Value" means fair and reasonable
cash value at the time of accrual of the tax.
[L 1965, c 155, pt of §2 and c
201, §40; Supp, §119-1; HRS §238-1; am L 1971, c 4, §6; am L 1974, c 144, §2;
am L 1981, c 167, §4; am L 1982, c 204, §8; am L 1983, c 124, §17 and c 167,
§4; am L 1985, c 270, §4; gen ch 1985, 1993; am L 1997, c 107, §4; am L 1999, c
70, §4; am L 2000, c 27, §2, c 38, §3, and 198, §7; am L 2001, c 210, §3; am L
2002, c 40, §8; am L 2004, c 114, §2; am L 2013, c 46, §1; am L 2018, c 183, §3;
am L 2019, c 2, §3]