§239-5 - Public utilities, generally.

§239-5 Public utilities, generally.
(a) There shall be levied and assessed upon each public utility, except
airlines, motor carriers, common carriers by water, and contract carriers taxed
by section 239-6, a tax of such rate per cent of its gross income each year
from its public utility business as shall be determined in the manner
hereinafter provided. The tax imposed by this section is in lieu of all taxes
other than those below set out, and is a means of taxing the personal property
of the public utility, tangible and intangible, including going concern value.
In addition to the tax imposed by this chapter there also are imposed income
taxes, the specific taxes imposed by chapter 249, the fees prescribed by
chapter 269, any tax specifically imposed by the terms of the public utility's
franchise or under chapter 240, the use or consumption tax imposed by chapter
238, and employment taxes.

The rate of the tax upon the gross income of
the public utility shall be four per cent; provided that if:

(1) A county provides by ordinance for a real
property tax exemption for real property used by a public utility in its public
utility business and owned by the public utility (or leased to it by a lease
under which the public utility is required to pay the taxes upon the property),
and

(2) The county has not denied the exemption to the
public utility, but excluding a denial based upon a dispute as to the
ownership, lease, or use of a specific parcel of real property,

then there shall be levied and assessed a tax in
excess of the four per cent rate determined in the manner hereinafter provided
upon the gross income allocable to such county. The revenues generated from
the tax in excess of the four per cent rate hereinbefore established shall be
paid by the public utility directly to such county based upon the proportion of
gross income from its public utility business attributable to such county,
based upon the allocation made in the public utility's filings with the State
of Hawaii; provided that if the gross income from the public utility business
attributable to such county is not so allocated in the public utility's State
filings, then the gross income from the public utility business shall be
equitably allocated to each county. The relative number of access lines in
each county shall be deemed an acceptable basis of equitable allocation for
telecommunication companies.

The rate of the tax in excess of the four per
cent rate hereinbefore established upon the gross income from the public
utility business shall be determined as follows:

If the ratio of the net income of the company
to its gross income is fifteen per cent or less, the rate of tax in excess of
the four per cent rate on gross income shall be 1.885 per cent; for all
companies having net income in excess of fifteen per cent of the gross, the
rate of the tax on gross income shall increase continuously in proportion to
the increase in ratio of net income to gross, at such rate that for each
increase of one per cent in the ratio of net income to gross, there shall be an
increase of .2675 per cent in the rate of the tax.

The following formula may be used to determine
the rate, in which formula the term "R" is the ratio of net income to
gross income, and "X" is the required rate of the tax on gross income
for the utility in question:

X =
(26.75R-2.1275)%;

provided that in no case governed by the formula
shall "X" be less than 1.885 per cent or more than 4.2 per cent.

However, if the gross income is apportioned
under section 239-8(b) or (c), there shall be no adjustment of the rate of tax
on the amount of gross income so apportioned to the State on account of the
ratio of the net income to the gross income being in excess of fifteen per
cent, and it shall be assumed in such case that the ratio is fifteen per cent
or less.

(b) Notwithstanding subsection (a), the rate
of the tax upon the portion of the gross income of a carrier of passengers by
land which consists in passenger fares for transportation between points on a
scheduled route, shall be 5.35 per cent. However, if the carrier has other
public utility gross income the fares nevertheless shall be included in
applying subsection (a) in determining the rate of tax upon the other public
utility gross income.

(1) A public utility that consists of the receipts
from the sale of its products or services to another public utility that
resells such products or services shall be one-half of one per cent; or

(2) A public utility engaged in the business of
selling telecommunication services to a person defined in section 237-13(6)(C)
who resells such products or services, shall be as follows:

(A) In calendar year 2000, 5.5 per cent;

(B) In calendar year 2001, 5.0 per cent;

(D) In calendar year 2003, 4.0 per cent;

(E) In calendar year 2004, 3.5 per cent;

(F) In calendar year 2005, 3.0 per cent;

(G) In calendar year 2006, 2.5 per cent; and

(H) In calendar year 2007, and thereafter, 0.5
per cent;

provided that the resale of the products, services,
or telecommunication services is subject to taxation under this section or
subject to taxation at the highest rate under section 237-13(6); and provided
further that the public utility's exemption from real property taxes imposed by
chapter 246 shall be reduced by the proportion that its public utility gross
income described herein bears to its total public utility gross income.
Whenever the public utility has other public utility gross income, the gross
income from the sale of its products or services to another public utility or a
person subject to section 237-13(6)(C) shall be included in applying subsection
(a) in determining the rate of tax upon the other public utility gross income.
The department shall have the authority to implement the tax rate changes in
paragraph (2) by prescribing tax forms and instructions that require tax
reporting and payment by deduction, allocation, or any other method to
determine tax liability with due regard to the tax rate changes. [L 1932 2d, c
43, §4; RL 1935, §2143; RL 1945, §5674; RL 1955, §126-5; am L Sp 1957, c 1,
§9(c) to (f); am L 1963, c 147, §2(e); am L 1965, c 201, §§30, 31; HRS §239-5;
am L 1968, c 59, §2; am L 1974, c 135, §1; am L 1990, c 34, §13; am L 2000, c
198, §14; am L 2001, c 64, §3; am L 2008, c 16, §10]

Note

L 2001, c 64, §7 provides:

"SECTION 7. Transition period. Commencing with the
July 2001, installment of the remaining quarterly or monthly installments of the
tax upon gross income which has been levied and assessed for the calendar year
2001 under section 239-5(a), Hawaii Revised Statutes, that portion of each such
installment that is described in section 3 [amending §239-5(a)] of this Act as
the tax in excess of the rate of four per cent that is paid to a county if the
county provides for a real property tax exemption for real property used by a
public utility in its public utility business, shall be paid to the respective
county director of finance as provided in section 3 [amending §239-5(a)] of
this Act. Provided that for the period July 2001 to December 2001, if a public
utility is not required to pay to a particular county director of finance tax
in excess of the rate of four per cent, as provided in section 3 [amending
§239-5(a)] of this Act, the public utility shall not be liable to the State or
respective county for such portion of the installments of the tax imposed in
excess of the rate of four per cent under section 239-5(a), Hawaii Revised
Statutes, for the period July 2001 to December 2001."

Case Notes

"Net income" defined. 34 H. 269, aff'd 105 F.2d
286; 34 H. 324.

The portion of tariff rates reflecting value of equipment
owned by taxpayer's customer is not income earned by taxpayer. 57 H. 477, 559
P.2d 283.