Sec. 1105. DEFINITIONS
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/statute-compilations/comps-10713/sec-1105A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
## SEC. 1105 DEFINITIONS **[**[47 U.S.C. 151 note](/us/usc/t47/s151)**]** For the purposes of this title: ####
(1)Bit tax The term “**bit tax**” means any tax on electronic commerce expressly imposed on or measured by the volume of digital information transmitted electronically, or the volume of digital information per unit of time transmitted electronically, but does not include taxes imposed on the provision of telecommunications. ####
(2)Discriminatory tax The term “**discriminatory tax**” means— #####
(A)any tax imposed by a State or political subdivision thereof on electronic commerce that— ######
(i)is not generally imposed and legally collectible by such State or such political subdivision on transactions involving similar property, goods, services, or information accomplished through other means; ######
(ii)is not generally imposed and legally collectible at the same rate by such State or such political subdivision on transactions involving similar property, goods, services, or information accomplished through other means, unless the rate is lower as part of a phase-out of the tax over not more than a 5-year period; ######
(iii)imposes an obligation to collect or pay the tax on a different person or entity than in the case of transactions involving similar property, goods, services, or information accomplished through other means; ######
(iv)establishes a classification of Internet access service providers or online service providers for purposes of establishing a higher tax rate to be imposed on such providers than the tax rate generally applied to providers of similar information services delivered through other means; or #####
(B)any tax imposed by a State or political subdivision thereof, if— ######
(i)the sole ability to access a site on a remote seller's out-of-State computer server is considered a factor in determining a remote seller's tax collection obligation; or ######
(ii)a provider of Internet access service or online services is deemed to be the agent of a remote seller for determining tax collection obligations solely as a result of— ######
(I)the display of a remote seller's information or content on the out-of-State computer server of a provider of Internet access service or online services; or ######
(II)the processing of orders through the out-of-State computer server of a provider of Internet access service or online services. ####
(3)Electronic commerce The term “**electronic commerce**” means any transaction conducted over the Internet or through Internet access, comprising the sale, lease, license, offer, or delivery of property, goods, services, or information, whether or not for consideration, and includes the provision of Internet access. ####
(4)Internet The term “**Internet**” means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio. ####
(5)Internet access The term “**Internet access**”— #####
(A)means a service that enables users to connect to the Internet to access content, information, or other services offered over the Internet; #####
(B)includes the purchase, use or sale of telecommunications by a provider of a service described in subparagraph
(A)to the extent such telecommunications are purchased, used or sold— ######
(i)to provide such service; or ######
(ii)to otherwise enable users to access content, information or other services offered over the Internet; #####
(C)includes services that are incidental to the provision of the service described in subparagraph
(A)when furnished to users as part of such service, such as a home page, electronic mail and instant messaging (including voice- and video-capable electronic mail and instant messaging), video clips, and personal electronic storage capacity; #####
(D)does not include voice, audio or video programming, or other products and services (except services described in subparagraph (A), (B), (C), or (E)) that utilize Internet protocol or any successor protocol and for which there is a charge, regardless of whether such charge is separately stated or aggregated with the charge for services described in subparagraph (A), (B), (C), or (E); and #####
(E)includes a homepage, electronic mail and instant messaging (including voice- and video-capable electronic mail and instant messaging), video clips, and personal electronic storage capacity, that are provided independently or not packaged with Internet access. ####
(6)Multiple tax #####
(A)In general The term “**multiple tax**” means any tax that is imposed by one State or political subdivision thereof on the same or essentially the same electronic commerce that is also subject to another tax imposed by another State or political subdivision thereof (whether or not at the same rate or on the same basis), without a credit (for example, a resale exemption certificate) for taxes paid in other jurisdictions. #####
(B)Exception Such term shall not include a sales or use tax imposed by a State and 1 or more political subdivisions thereof on the same electronic commerce or a tax on persons engaged in electronic commerce which also may have been subject to a sales or use tax thereon. #####
(C)Sales or use tax For purposes of subparagraph (B), the term “**sales or use tax**” means a tax that is imposed on or incident to the sale, purchase, storage, consumption, distribution, or other use of tangible personal property or services as may be defined by laws imposing such tax and which is measured by the amount of the sales price or other charge for such property or service. ####
(7)State The term “**State**” means any of the several States, the District of Columbia, or any commonwealth, territory, or possession of the United States. ####
(8)Tax #####
(A)In general The term “**tax**” means— ######
(i)any charge imposed by any governmental entity for the purpose of generating revenues for governmental purposes, and is not a fee imposed for a specific privilege, service, or benefit conferred; or ######
(ii)the imposition on a seller of an obligation to collect and to remit to a governmental entity any sales or use tax imposed on a buyer by a governmental entity. #####
(B)Exception Such term does not include any franchise fee or similar fee imposed by a State or local franchising authority, pursuant to section 622 or 653 of the Communications Act of 1934 (47 U.S.C. 542, 573), or any other fee related to obligations or telecommunications carriers under the Communications Act of 1934 (47 U.S.C. 151 et seq.). ####
(9)Telecommunications The term “**telecommunications**” means “**telecommunications**” as such term is defined in section 3(43) of the Communications Act of 1934 (47 U.S.C. 153(43)) and “**telecommunications service**” as such term is defined in section 3(46) of such Act (47 U.S.C. 153(46)), and includes communications services (as defined in section 4251 of the Internal Revenue Code of 1986 (26 U.S.C. 4251)). ####
(10)Tax on internet access #####
(A)In general The term “**tax on Internet access**” means a tax on Internet access, regardless of whether such tax is imposed on a provider of Internet access or a buyer of Internet access and regardless of the terminology used to describe the tax. #####
(B)General exception The term “**tax on Internet access**” does not include a tax levied upon or measured by net income, capital stock, net worth, or property value. #####
(C)Specific exception ######
(i)Specified taxes Effective November 1, 2007, the term “**tax on Internet access**” also does not include a State tax expressly levied on commercial activity, modified gross receipts, taxable margin, or gross income of the business, by a State law specifically using one of the foregoing terms, that— ######
(I)was enacted after June 20, 2005, and before November 1, 2007 (or, in the case of a State business and occupation tax, was enacted after January 1, 1932, and before January 1, 1936); ######
(II)replaced, in whole or in part, a modified value-added tax or a tax levied upon or measured by net income, capital stock, or net worth (or, is a State business and occupation tax that was enacted after January 1, 1932 and before January 1, 1936); ######
(III)is imposed on a broad range of business activity; and ######
(IV)is not discriminatory in its application to providers of communication services, Internet access, or telecommunications. ######
(ii)Modifications Nothing in this subparagraph shall be construed as a limitation on a State's ability to make modifications to a tax covered by clause
(i)of this subparagraph after November 1, 2007, as long as the modifications do not substantially narrow the range of business activities on which the tax is imposed or otherwise disqualify the tax under clause (i). ######
(iii)No inference No inference of legislative construction shall be drawn from this subparagraph regarding the application of subparagraph
(A)or
(B)to any tax described in clause
(i)for periods prior to November 1, 2007.
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