DEFINITIONS;
ADMINISTRATION



 



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



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



(1)  Tangible personal property by a person who is not
required to be licensed under this chapter, or



(2)  Tangible personal property which is not
ordinarily sold in the business of a person who is regularly engaged in business.



"Comptroller" means the comptroller
of the State.



"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.



"Penalty" or "penalties",
when used in connection with the additions to the tax imposed for delinquency
in 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 in
bankruptcy, or other entity, whether such persons are doing business for
themselves or in a fiduciary capacity, and whether the individuals are
residents or nonresidents of the State, and whether the corporation or other
association is created or organized under the laws of the State or of another
jurisdiction.  Any person who has in the person's possession, for sale in the
State, the property of a nonresident owner, other than as an employee of such
owner, 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 the
services are prepaid by the group member or by some other person or
organization in the member's behalf.  A group legal service plan is a plan by
which legal services are rendered to individual members of a group identifiable
in terms of some common interest.  A plan shall provide:



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



(B) For the payment of equal amounts for the cost of
services rendered without regard to the identity of the attorney or attorneys
selected by the plan member or members.  No plan shall otherwise discriminate
on the basis of such selection.



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



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



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



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



"Taxpayer" means any person liable
for any tax hereunder.



"Tax year" or "taxable
year" means either the calendar year or the taxpayer's fiscal year when
the same constitutes the tax period instead of the calendar year pursuant to
section 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 c
152, §1; HRS §237-1; am L 1969, c 46, §1 and c 137, §2; am L 1976, c 156, §9
and 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 gross
income 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 of
Classification or Exemption, Arthur B. Reinwald, 11 HBJ 98.



 



Case Notes



 



  By their terms, this section and §383-1 applied only to
parties actively doing business as an employer; thus, while plaintiff (surety
which issued subcontractor's performance and payment bond) may be taxed on any
wages it paid while acting as an employer, it may not be held liable for taxes
that 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 as
applied to sales to PX's and ships stores.  37 H. 314, aff'd 174 F.2d 21.  See
also 38 H. 188, 204.



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



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



  Taxability of transactions between joint venture and its
member.  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 delivery
were "sale".  65 H. 283, 651 P.2d 469.



  Cited:  33 H. 766, 771.