§238-6  Collection of tax by seller;penalty.  (a)  For purposes of the taxes due under sections 238-2 and238-2.3, every seller having in the State, regularly or intermittently, anyproperty, tangible or intangible, any place of business, or any representationas hereinabove defined, (and irrespective of the seller's having or not havingqualified to do business in the State) shall, if the seller makes sales ofproperty, services, or contracting for use in the State (whether or not thesales are made in the State), collect from the purchaser the taxes imposed bysections 238-2 and 238-2.3, on the use of the property, services, orcontracting so sold by the seller, if the seller is not subject to the use taxunder this chapter on the importation of the property into the State.  Thecollection shall be made within twenty days after the accrual of the tax orwithin such other period as shall be fixed by the director of taxation upon theapplication of the seller, and the seller shall give to the purchaser a receipttherefor in the manner and form prescribed by the director; provided that thissubsection shall not apply to vehicles registered under section 286-50.

(b)  The director, in the director'sdiscretion, upon application therefor and under terms and conditions prescribedby the director, may relieve any seller of the duty of collecting and payingover the tax imposed by subsection (a) above, if the director is satisfied thatthe tax can be effectively collected by other means.  Exemption from the duty ofcollecting the tax may be canceled at any time when the director finds that thetax cannot be effectively collected by other means.  The director likewise mayterminate the duty and authority of any seller to collect and pay over the taximposed by subsection (a) above if the director finds, as to such seller, thatthe tax cannot be effectively collected by such means.

(c)  The director, in the director'sdiscretion, upon application therefor and under terms and conditions prescribedby the director, may authorize the collection of the tax imposed by thischapter by a seller not otherwise required to collect the tax.  The seller,when so authorized, shall have the duty of collecting and paying over the taxin the same manner and subject to the same requirements as set out insubsection (a).  The authority may be canceled at any time when, in thejudgment of the director, the tax can more effectively be collected by othermeans.

(d)  In case any seller required or authorizedto collect the tax under this chapter fails to collect the same, or havingcollected the tax fails to pay over the same as provided by this chapter, theseller shall nevertheless be personally liable to the State for the amount ofthe tax, but it shall be a defense to such liability that the indebtedness forthe price is a worthless account actually charged off for income tax purposes,if and to the extent that the collections of the price do not equal the tax.

(e)  Every seller required or authorized tocollect the tax shall make returns and payments of the tax at the same time andin the same manner as is provided with respect to taxpayer by section 238-5. All provisions of this chapter with respect to returns, reports, records,payments, penalties, and interest, appeals, investigations, and audits,assessments, tax collections procedure, criminal offenses, and the generaladministrative powers and duties of the director, shall apply to such sellersthe same as to taxpayers.

(f)  The tax collected pursuant to this sectionshall be held in trust for the State and for payment to the proper collectingofficer in the manner and at the time required by this chapter.  Any personcollecting such tax who appropriates or converts the same to the person's ownuse or to any use other than the payment of the tax as herein provided, and whofails to pay over the amount of tax so collected at the time required by thischapter, shall be deemed guilty of an embezzlement of property of the State andshall be fined more than five times the amount of money so embezzled orimprisoned at hard labor not more than ten years, and any failure by the personso collecting the tax to pay the same over within the time provided by thischapter, after demand therefor, shall be taken and held to be prima facieevidence of the embezzlement. [L 1965, c 155, pt of §2; Supp, §119-6; HRS§238-6; gen ch 1985; am L 1990, c 184, §10; am L 1999, c 70, §7; am L 2000, c198, §12; am L 2003, c 135, §7; am L 2004, c 114, §5]

 

Note

 

  Development agreement requirements and effect of 1990amendment until December 31, 2002.  L 1990, c 184, §§11, 13.

  Applicability of 2000 amendment.  L 2000, c 198, §17.

  The 2004 amendment is retroactive to taxable years beginningafter December 31, 1998.  L 2004, c 114, §7.

 

Cross References

 

  Classification of offense and authorized punishment, see§§701-107, 706-610(2), 640, 660.