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2018 SESSION
18102521DBe it enacted by the General Assembly of Virginia:
1. That §§ 58.1-647 and 58.1-648 of the Code of Virginia are amended and reenacted as follows:
§ 58.1-647. Definitions.
Terms used in this chapter shall have the same meanings as
those used in Chapter 6 of this title (§ 58.1-600 et seq.), unless
defined otherwise, as follows:
"Cable service" means the one-way transmission to
subscribers of (i) video programming as defined in 47 U.S.C. § 522 (20)
522(20) or (ii) other programming service, and subscriber
interaction, if any, which is required for the selection of such video
programming or other programming service. Cable service does not include any
video programming provided by a commercial mobile service provider as defined
in 47 U.S.C. § 332 (d) 332(d) and any direct-to-home
satellite service as defined in 47 U.S.C. § 303
(v) 303(v).
"Call-by-call basis" means any method of charging for telecommunications services where the price is measured by individual calls.
"Coin-operated communications service" means a communications service paid for by means of inserting coins in a coin-operated telephone.
"Communications services" means the electronic
transmission, conveyance, or routing of voice, data, audio, video, or any other
information or signals, including cable services, and any
other service utilizing any communications infrastructure such as
international calling services, extended call area services, audio and visual
streaming services, and Internet
application-based services, to
a point or between or among points, by or through any electronic, radio,
satellite, cable, optical, microwave, or other medium or method now in
existence or hereafter devised, regardless of the protocol used for the
transmission or conveyance. The term "Communications services"
includes, but is not limited to, (i) the connection, movement, change, or
termination of communications services; (ii) detailed billing of communications
services; (iii) sale of directory listings in connection with a communications
service; (iv) central office and custom calling features; (v) voice mail and
other messaging services; and (vi) directory
assistance. "Communications
services" applies to any service described or listed in this
definition, regardless of whether the customer is billed for such service based
on a subscription charge, a periodic charge, or a charge
for actual usage, including such a fee for
the use of an Internet-based application, excluding the original cost of
purchasing the application.
"Communications services provider" means every person who provides communications services to customers in the Commonwealth and is or should be registered with the Department as a provider.
"Cost price" means the actual cost of the purchased communications service computed in the same manner as the sales price.
"Customer" means the person who contracts with the seller of communications services. If the person who utilizes the communications services is not the contracting party, the person who utilizes the services on his own behalf or on behalf of an entity is the customer of such service. "Customer" does not include a reseller of communications services or the mobile communications services of a serving carrier under an agreement to serve the customer outside the communications service provider's licensed service area.
"Customer channel termination point" means the location where the customer either inputs or receives the private communications service.
"Information service" means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, using, or making available information via communications services for purposes other than the electronic transmission, conveyance, or routing.
"Internet access service" means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to users. "Internet access service" does not include telecommunications services, except to the extent telecommunications services are purchased, used, or sold by a provider of Internet access to provide Internet access.
"Place of primary use" means the street address representative of where the customer's use of the communications services primarily occurs, which must be the residential street address or the primary business street address of the customer. In the case of mobile communications services, the place of primary use shall be within the licensed service area of the home service provider.
"Postpaid calling service" means the communications service obtained by making a payment on a call-by-call basis either through the use of a credit card or payment mechanism such as a bank card, travel card, debit card, or by a charge made to a telephone number that is not associated with the origination or termination of the communications service.
"Prepaid calling service" means the right to access exclusively communications services, which must be 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 that decrease in number with use.
"Private communications service" means a communications service that entitles the customer or user to exclusive or priority use of a communications channel or group of channels between or among channel termination points, regardless of the manner in which such 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 such channel or channels.
"Retail sale" or a "sale at retail" means a sale of communications services for any purpose other than for resale or for use as a component part of or for the integration into communications services to be resold in the ordinary course of business.
"Sales price" means the total amount charged in money or other consideration by a communications services provider for the sale of the right or privilege of using communications services in the Commonwealth, including any property or other services that are part of the sale. The sales price of communications services shall not be reduced by any separately identified components of the charge that constitute expenses of the communications services provider, including but not limited to, sales taxes on goods or services purchased by the communications services provider, property taxes, taxes measured by net income, and universal-service fund fees.
"Service address" means,
(i) 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. If the location is not known in clause (i),
"service address" means (ii) the origination point of the signal of
the telecommunications system or in information received by the seller from its
service provider, where the system used to transport such signals is not that
of the seller. If the location is not known in clauses (i) and (ii), the
service address means (iii) the location of the customer's place of primary
use.
"Streaming service" means a method of transmitting or receiving video and audio data over a computer network as a steady, continuous flow, allowing playback to proceed while subsequent data is being received.
§ 58.1-648. Imposition of sales tax; exemptions.
A. Beginning January 1, 2007, there is levied and imposed, in addition to all other taxes and fees of every kind imposed by law, a sales or use tax on the customers of communications services in the amount of 5% of the sales price of each communications service that is sourced to the Commonwealth in accordance with § 58.1-649.
B. The sales price on which the tax is levied shall not
include charges for any of the following: (i) an excise, sales, or similar tax
levied by the United States or any state or local government on the purchase, sale,
use, or consumption of any communications service that is permitted or required
to be added to the sales price of such service, if the tax is stated
separately; (ii) a fee or assessment levied by the United States or any state
or local government, including but not limited to, regulatory fees and
emergency telephone surcharges, that is required to be added to the price of
service if the fee or assessment is separately stated; (iii) coin-operated
communications services; (iv) sale or recharge of a
prepaid calling service; (v) provision of air-to-ground
radiotelephone services, as that term is defined in 47 C.F.R. § 22.99; (vi) (v) a communications services
provider's internal use of communications services in connection with its
business of providing communications services; (vii) (vi) charges for property or
other services that are not part of the sale of communications services, if the
charges are stated separately from the charges for communications services; (viii) (vii)
sales for resale; (ix) (viii) charges for
communications services to the Commonwealth, any political subdivision of the
Commonwealth, and the federal government and any agency or instrumentality of
the federal government; and (x) (ix) charges for
communications services to any customers on any federal military bases or
installations when a franchise fee or similar fee for access is payable to the
federal government, or any agency or instrumentality thereof, with respect to
the same communications services.
C. Communications services on which the tax is hereby levied
shall not include the following: (i) information services; (ii) installation or
maintenance of wiring or equipment on a customer's premises; (iii) the sale or
rental of tangible personal property; (iv) the sale of advertising, including
but not limited to, directory advertising; (v) bad check charges; (vi) billing
and collection services; (vii) Internet access service,
electronic mail service, electronic bulletin board service, or similar services
that are incidental to Internet access, such as voice-capable e-mail email
or instant messaging; (viii) digital products delivered electronically, such as
software, downloaded music, video, ring tones, and reading
materials; and (ix) over-the-air radio and television service broadcast without
charge by an entity licensed for such purposes by the Federal Communications
Commission. Also, those entities exempt from the tax imposed in accordance with
the provisions of Article 4 (§ 58.1-3812 et seq.) of Chapter 38 of Title 58.1, in effect on
January 1, 2006, shall continue to be exempt from the tax imposed in accordance
with the provisions of this chapter.