39-15-104. Taxation rate.
(a) Except as provided by W.S. 39-15-105 there is levied and shall be paid by the purchaser on all sales an excise tax of three percent (3%) upon all events as provided by W.S. 39-15-103(a).
(b) Effective July 1, 1993, in addition to the sales tax under subsection (a) of this section there is imposed an additional sales tax of one percent (1%) which shall be administered as if the sales tax rate under subsection (a) of this section was increased from three percent (3%) to four percent (4%). The revenue from these increases shall be distributed in the same manner as other sales tax revenue under those sections.
(c) Repealed by Laws 2000, Ch. 26, § 1.
(d) Repealed By Laws 2007, Ch. 140, § 2.
(e) The license fee and taxes imposed by this article are in addition to all other licenses and taxes provided by law except as otherwise provided.
(f) The tax rate imposed upon a transaction subject to this chapter shall be sourced as follows:
(i) The retail sale, excluding lease or rental, of a product shall be sourced as follows:
(A) When the product is received by the purchaser at a business location of the seller, the sale shall be sourced to that business location;
(B) When the product is not received by the purchaser at a business location of the seller's, the sale shall be sourced to the location where receipt by the purchaser, or the purchaser's agent designated as such by the purchaser, occurs, including the location indicated by instruction for delivery to the purchaser or donee, known to the seller;
(C) When subparagraphs (A) and (B) of this paragraph do not apply, the sale shall be sourced to the location indicated by an address for the purchaser that is available from the business records of the seller that are maintained in the ordinary course of the seller's business when use of this address does not constitute bad faith;
(D) When subparagraphs (A) through (C) of this paragraph do not apply, the sale shall be sourced to the location indicated by an address for the purchaser obtained during the consummation of the sale, including the address of a purchaser's payment instrument, if no other address is available, when use of this address does not constitute bad faith;
(E) When none of the previous rules of subparagraphs (A) through (D) of this paragraph apply, including the circumstance in which the seller is without sufficient information to apply any of the previous rules, then the location shall be determined by the address from which tangible personal property was shipped, from which the digital good or the computer software delivered electronically was first available for transmission by the seller, or from which the service was provided, disregarding for these purposes any location that merely provided the digital transfer of the product sold;
(F) For the purposes of this paragraph the terms "receive" and "receipt" mean taking possession of tangible personal property, making first use of services or taking possession or making first use of digital goods, whichever comes first. The terms "receive" and "receipt" do not include possession by a shipping company on behalf of the purchaser.
(ii) The lease or rental of tangible personal property, other than property identified in paragraph (iii) or (iv) of this subsection, shall be sourced as follows:
(A) For a lease or rental that requires recurring periodic payments, the first periodic payment shall be sourced the same as a retail sale in accordance with the provisions of paragraph (i) of this subsection. Periodic payments made subsequently to the first payment shall be sourced to the primary property location for each period covered by the payment. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not constitute bad faith. The property location shall not be altered by intermittent use at different locations, such as use of the business property that accompanies employees on business trips and service calls;
(B) For a lease or rental that does not require recurring periodic payments, the payment shall be sourced the same as a retail sale in accordance with the provisions of paragraph (i) of this subsection;
(C) This paragraph shall not affect the imposition or computation of sales or use tax on leases or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.
(iii) The lease or rental of a motor vehicle, trailer, semi-trailer or aircraft that does not qualify as transportation equipment, as defined in paragraph (iv) of this subsection shall be sourced as follows:
(A) For a lease or rental that requires recurring periodic payment, each periodic payment shall be sourced to the primary property location. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not constitute bad faith. This location shall not be altered by intermittent use at different locations;
(B) For a lease or rental that does not require recurring periodic payments, the payment shall be sourced the same as a retail sale in accordance with the provisions of paragraph (i) of this subsection;
(C) This paragraph shall not affect the imposition or computation of sales or use tax on a lease or rental based on a lump sum or accelerated basis, or on the acquisition of property for lease.
(iv) The retail sale, including lease or rental of transportation equipment shall be sourced the same as a retail sale in accordance with the provisions of paragraph (i) of this subsection. As used in this paragraph, "transportation equipment" means any of the following:
(A) Locomotives and railcars that are utilized for the carriage of persons or property in interstate commerce;
(B) Trucks and truck-tractors with a gross vehicle weight rating (GVWR) of greater than ten thousand (10,000) pounds, trailers, semi-trailers or passenger buses that are:
(I) Registered through the international registration plan; and
(II) Operated under authority of a carrier authorized and certified by the United States department of transportation or another federal or a foreign authority to engage in the carriage of personnel or property in interstate or foreign commerce.
(C) Aircraft that are operated by an air carrier authorized and certified by the United States department of transportation or another federal authority or foreign authority to engage in the carriage of persons or property in interstate or foreign commerce;
(D) Containers designed for use on and component parts attached or secured on the items set forth in subparagraphs (A) through (C) of this paragraph.
(v) Repealed By Laws 2010, Ch. 35, § 2.
(vi) Repealed By Laws 2013, Ch. 179, § 2.
(vii) Repealed By Laws 2013, Ch. 179, § 2.
(viii) Repealed By Laws 2013, Ch. 179, § 2.
(ix) Except for the defined telecommunication services in paragraph (xi) of this subsection, the sale of telecommunication service sold on a call-by-call basis shall be sourced to:
(A) Each level of taxing jurisdiction where the call originates and terminates in that jurisdiction; or
(B) Each level of taxing jurisdiction where the call either originates or terminates and in which the service address is also located.
(x) Except for the defined telecommunication services in paragraph (xi) of this subsection, a sale of telecommunication service sold on a basis other than a call-by-call basis and any ancillary service incidental to the sale, shall be sourced to the customer's place of primary use;
(xi) The sales of the following telecommunication services shall be sourced to each level of taxing jurisdiction as follows:
(A) A sale of mobile telecommunications services other than air-to-ground radio telephone service and prepaid calling service, shall be sourced to the customer's place of primary use as required by the Mobile Telecommunications Sourcing Act, P.L. 106-252;
(B) A sale of post-paid calling service shall be sourced to the origination point of the telecommunications signal as first identified by either:
(I) The seller's telecommunications system; or
(II) Information received by the seller from its service provider, where the system used to transport such signals is not that of the seller.
(C) A sale of prepaid calling service and prepaid wireless calling service shall be sourced in accordance with paragraph (i) of this subsection. Provided however, in the case of a sale of a prepaid wireless calling service, the rule provided in subparagraph (i)(E) of this subsection shall include as an option the location associated with the mobile telephone number;
(D) A sale of a private communication service shall be sourced as follows:
(I) Service for a separate charge related to a customer channel termination point shall be sourced to each level of jurisdiction in which the customer channel termination point is located;
(II) Service where all customer termination points are located entirely within one (1) jurisdiction or levels of jurisdiction shall be sourced in the jurisdiction in which the customer channel termination points are located;
(III) Service for segments of a channel between two (2) customer channel termination points located in different jurisdictions and which segments of a channel are separately charged shall be sourced fifty percent (50%) in each level of jurisdiction in which the customer channel termination points are located;
(IV) Service for segments of a channel located in more than one (1) jurisdiction or levels of jurisdiction and which segments are not separately billed shall be sourced in each jurisdiction based on the percentage determined by dividing the number of customer channel termination points in the jurisdiction by the total number of customer channel termination points.
(E) As used in paragraphs (ix) through (xi) of this subsection, the following definitions apply:
(I) "Air-to-ground radio/telephone service" means a radio service, as that term is defined in 47 C.F.R. 22.99, in which common carriers are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft;
(II) "Call-by-call basis" means any method of charging for telecommunications services where the price is measured by individual calls;
(III) "Communications channel" means a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points;
(IV) "Customer" means the person or entity that contracts with the seller of telecommunications services. If the end user of telecommunications services is not the contracting party, the end user of the telecommunications service is the customer of the telecommunication service, but this sentence only applies for the purpose of sourcing sales of telecommunications services under paragraphs (ix) through (xi) of this subsection. "Customer" does not include a reseller of telecommunications service or the mobile telecommunications service of a serving carrier under an agreement to serve the customer outside the home service provider's licensed service area;
(V) "Customer channel termination point" means the location where the customer either inputs or receives the communications;
(VI) "End user" means the person who utilizes the telecommunication service. In the case of an entity, "end user" means the individual who utilizes the service on behalf of the entity;
(VII) "Home service provider" means the same as that term is defined in § 124(5) of P.L. 106-252, Mobile Telecommunications Sourcing Act;
(VIII) "Mobile telecommunications service" means the same as that term is defined in § 124(5) of P.L. 106-252, Mobile Telecommunications Sourcing Act;
(IX) "Place of primary use" means the street address representative of where the customer's use of the telecommunications service primarily occurs, which shall be the residential street address or the primary business street address of the customer. In the case of mobile telecommunications services, "place of primary use" shall be within the licensed service area of the home service provider;
(X) "Post-paid calling service" means the telecommunications service obtained by making a payment on a call-by-call basis either through the use of a payment mechanism such as a bank card, travel card, credit card, or debit card, or by charge made to a telephone number which is not associated with the origination or termination of the telecommunications service. A post-paid calling service includes a telecommunications service, except a prepaid wireless calling service, that would be a prepaid calling service except it is not exclusively a telecommunications service;
(XI) "Prepaid calling service" means the right to access exclusively telecommunications services, which are paid for in advance and which enables 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;
(XII) "Private communications 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 the 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 the channel or channels;
(XIII) "Service address" means:
(1) The location of the telecommunications equipment to which a customer's call is charged and from which the call originates or terminates, regardless of where the call is billed or paid;
(2) If the location in section (1) of this subdivision is not known, service address means the origination point of the signal of the telecommunications services first identified by either the seller's telecommunications system or in information received by the seller from its service provider, where the system used to transport the signals is not that of the seller;
(3) If neither location specified in section (1) or (2) of this subdivision is known, the service address means the location of the customer's place of primary use.
(XIV) "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, which must be paid for in advance that is sold in predetermined units or dollars of which the number declines with use in a known amount.
(xii) A purchaser of advertising and promotional direct mail may provide the seller with either:
(A) A direct pay permit;
(B) An agreement certificate of exemption claiming direct mail or other written statement approved, authorized or accepted by the state; or
(C) Information showing the jurisdictions to which the advertising and promotional direct mail is to be delivered to recipients.
(xiii) If a purchaser provides a permit, certificate or statement under subparagraph (xii)(A) or (B) of this subsection, the seller, in the absence of bad faith, is relieved of any obligation to collect, pay or remit any tax on any transaction involving advertising and promotional direct mail to which the permit, certificate or statement applies. The purchaser shall source the sale to the jurisdictions to which the advertising and promotional direct mail is to be delivered to recipients and shall pay any applicable tax due;
(xiv) If the purchaser provides the seller information showing the jurisdictions where the advertising and promotional direct mail is to be delivered to recipients, the seller shall source the sale to the jurisdictions to which the advertising and promotional direct mail is to be delivered and shall collect and remit the applicable tax. In the absence of bad faith, the seller is relieved of any further obligation to collect any additional tax on the sale of advertising and promotional direct mail where the seller has sourced the sale according to the delivery information provided by the seller;
(xv) If the purchaser does not provide the seller with any of the items under paragraph (f)(vi) of this section, the sale shall be sourced according to subparagraph (f)(i)(E) of this section;
(xvi) As used in this subsection:
(A) "Advertising and promotional direct mail" means printed material that meets the definition of direct mail the primary purpose of which is to attract public attention to a product, person, business or organization or to attempt to sell, popularize or secure financial support for a product, person, business or organization;
(B) "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;
(C) "Product" means tangible personal property, a product transferred electronically or a service;
(D) "Other direct mail" means any direct mail that is not advertising and promotional direct mail regardless of whether advertising and promotional direct mail is included in the same mailing. "Other direct mail" includes, but is not limited to:
(I) Transactional mail that contains personal information specific to the addressee including, but not limited to, invoices, bills, statements of account and payroll advices;
(II) Any legally required mailing including, but not limited to, privacy notices, tax reports and stockholder reports;
(III) Other nonpromotional direct mail delivered to existing or former shareholders, customers, employees or agents including, but not limited to, newsletters and informational documents.
(E) "Other direct mail" does not include the development of billing information or the provision of any data processing service that is more than incidental.
(g) Any vendor or certified service provider relying on an incorrect rate, boundary or jurisdictional information provided by the department in its tax rate database required under the streamlined sales and use tax agreement shall not be held liable for any under collection of tax caused by the department's error.
(h) In addition to the sales tax under subsections (a) and (b) of this section there is imposed an assessment upon the sale of lodging services of five percent (5%) as follows:
(i) Three percent (3%) to be distributed as provided in W.S. 39-15-111(p)(i); and
(ii) Two percent (2%) to be distributed as provided in W.S. 39-15-111(p)(ii).