DEFINITIONS;ADMINISTRATION

 

§237-1  Definitions.  When used in thischapter, unless otherwise required by the context, the definitions contained inthis section and in sections 237-2 to 237-7 shall govern.

"Casual sale" means an occasional orisolated sale or transaction involving:

(1)  Tangible personal property by a person who is notrequired to be licensed under this chapter, or

(2)  Tangible personal property which is notordinarily sold in the business of a person who is regularly engaged in business.

"Comptroller" means the comptrollerof the State.

"Overhead" means continuous orgeneral costs occurring in the normal course of a business, including but notlimited to costs for labor, rent, taxes, royalties, interest, discounts paid,insurance, lighting, heating, cooling, accounting, legal fees, equipment andfacilities, telephone systems, depreciation, and amortization.

"Penalty" or "penalties",when used in connection with the additions to the tax imposed for delinquencyin payment, includes interest as well.

"Person" or "company"includes every individual, partnership, society, unincorporated association,joint adventure, group, hui, joint stock company, corporation, trustee,personal representative, trust estate, decedent's estate, trust, trustee inbankruptcy, or other entity, whether such persons are doing business forthemselves or in a fiduciary capacity, and whether the individuals areresidents or nonresidents of the State, and whether the corporation or otherassociation is created or organized under the laws of the State or of anotherjurisdiction.  Any person who has in the person's possession, for sale in theState, the property of a nonresident owner, other than as an employee of suchowner, shall be deemed the seller of the property, when sold.

"Prepaid legal service plan"("Plan") means a group legal service plan in which the cost of theservices are prepaid by the group member or by some other person ororganization in the member's behalf.  A group legal service plan is a plan bywhich legal services are rendered to individual members of a group identifiablein terms of some common interest.  A plan shall provide:

(A) That individual members shall be afforded freedomof choice in the selection of their own attorney or attorneys to provide legalservices under such plan.

(B) For the payment of equal amounts for the cost ofservices rendered without regard to the identity of the attorney or attorneysselected by the plan member or members.  No plan shall otherwise discriminateon the basis of such selection.

"Purchasing agent" means any personwho, as an agent and not a seller, for a consideration, is engaged in the Statein the business of purchasing for the purchasing agent's principal orprincipals from an unlicensed seller or sellers property for use by suchprincipals in the State, for example, by forwarding orders for such purchases,in behalf of such principals, it being immaterial whether the purchasing agentis compensated for the purchasing agent's services by the seller or by thepurchaser; but the term "purchasing agent" does not include anemployee of the purchaser.

"Representative" means anysalesperson, commission agent, manufacturer's representative, broker or otherperson who is authorized or employed by an unlicensed seller to assist suchseller in selling property for use in the State, by procuring orders for suchsales or otherwise, and who carries on such activities in the State, it beingimmaterial whether such activities are regular or intermittent; but the term"representative" does not include a manufacturer's representativewhose functions are wholly promotional and to act as liaison between anunlicensed seller and a seller or sellers, and which do not include theprocuring, soliciting or accepting of orders for property or the making ofdeliveries of property, or the collecting of payment for deliveries ofproperty, or the keeping of books of account concerning property orders,deliveries or collections transpiring between an unlicensed seller and a selleror sellers.  Any unlicensed seller who in person carries on any such activityin the State shall also be classed as a representative.

"Retailing" or "sales atretail" includes the sale of tangible personal property for consumption oruse by the purchaser and not for resale, the renting of tangible personalproperty, and the rendering of services by one engaged in a service business orcalling, as defined in section 237-7, to a person who is not purchasing theservices for resale.  Persons described in this definition are"retailers".

"Sale" or "sales" includesthe exchange of properties as well as the sale thereof for money.

"Taxpayer" means any person liablefor any tax hereunder.

"Tax year" or "taxableyear" means either the calendar year or the taxpayer's fiscal year whenthe same constitutes the tax period instead of the calendar year pursuant tosection 237-11. [L 1935, c 141, pt of §1; am L 1941, c 265, §1(c); RL 1945,§§5441, 5442; am L 1947, c 113, §6; RL 1955, §117-1; am L 1957, c 34, §3 and c152, §1; HRS §237-1; am L 1969, c 46, §1 and c 137, §2; am L 1976, c 156, §9and c 200, pt of §1; gen ch 1985; am L 1991, c 23, §1; gen ch 1993; am L 1999,c 71, §3; am L 2003, c 135, §1]

 

Attorney General Opinions

 

  Tax credits of one partner can be applied against grossincome tax due and owing by the partnership.  Att. Gen. Op. 64-5.

 

Law Journals and Reviews

 

  Rule of Strict Construction in Tax Cases, a Question ofClassification or Exemption, Arthur B. Reinwald, 11 HBJ 98.

 

Case Notes

 

  By their terms, this section and §383-1 applied only toparties actively doing business as an employer; thus, while plaintiff (suretywhich issued subcontractor's performance and payment bond) may be taxed on anywages it paid while acting as an employer, it may not be held liable for taxesthat accrued while principal (subcontractor) was acting as the employer.  67 F.Supp. 2d 1183.

  Corporate administrator doing business for estate is a"person" subject to excise tax.  34 H. 493.

  L 1935, c 141, original legislation, held constitutional asapplied to sales to PX's and ships stores.  37 H. 314, aff'd 174 F.2d 21.  Seealso 38 H. 188, 204.

  Gross income earned by trustee in bankruptcy is taxable underchapter.  52 H. 56, 469 P.2d 814.

  Nondomiciliary trustee holding property for another foundliable for tax.  57 H. 436, 559 P.2d 264.

  Taxability of transactions between joint venture and itsmember.  59 H. 307, 582 P.2d 703.

 "Person" includes partnerships and joint ventures. 61 H. 572, 608 P.2d 383.

  Measurement of gasoline and terminating charge upon deliverywere "sale".  65 H. 283, 651 P.2d 469.

  Cited:  33 H. 766, 771.