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HR 1956 RH

To regulate certain State taxation of interstate commerce; and for other purposes.

April 28, 2005

Mr. GOODLATTE (for himself, Mr. BOUCHER, Mr. CROWLEY, Mr. FORBES, Mr. MEEKS of New York, Mr. CHABOT, Mr. BACHUS, Mr. BOEHNER, Mrs. DRAKE, Mr. TIBERI, Mr. CANTOR, Mr. MORAN of Virginia, and Mr. SMITH of Texas) introduced the following bill; which was referred to the Committee on the Judiciary

July 17, 2006

Additional sponsors: Mrs. BLACKBURN, Mr. WILSON of South Carolina, Mr. UPTON, Mr. GALLEGLY, Mr. CARTER, Mr. SOUDER, Mr. RAMSTAD, Mr. KING of Iowa, Ms. HART, Mr. COLE of Oklahoma, Mr. GARRETT of New Jersey, Mr. BARRETT of South Carolina, Mr. PENCE, Mrs. JO ANN DAVIS of Virginia, Mr. LATHAM, Mr. MARCHANT, Mr. BROWN of South Carolina, Mr. ROGERS of Kentucky, Mr. KOLBE, Mr. FLAKE, Mr. FRANKS of Arizona, Mr. ENGLISH of Pennsylvania, Ms. HERSETH, Mr. MURPHY, Mr. BISHOP of Utah, Mr. JENKINS, Mr. FEENEY, and Mr. DANIEL E. LUNGREN of California

July 17, 2006

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on April 28, 2005]

To regulate certain State taxation of interstate commerce; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Business Activity Tax Simplification Act of 2006'.

SEC. 2. REMOVAL OF CERTAIN LIMITATIONS ON THE APPLICATION OF PUBLIC LAW 86-272.

(a) Solicitations With Respect to Sales and Transactions of Other Than Tangible Personal Property- Section 101 of the Act entitled `An Act relating to the power of the States to impose net income taxes on income derived from interstate commerce, and authorizing studies by congressional committees of matters pertaining thereto', approved September 14, 1959 (15 U.S.C. 381 et seq.) is amended--

(1) in subsection (a)(1) by striking `of tangible' and all that follows through `State; and' and inserting the following:

`or transactions, which orders are sent outside the State for approval or rejection and, if approved, are--

`(A) in the case of tangible personal property, filled by shipment or delivery from a point outside the State; and

`(B) in the case of all other forms of property, services, and other transactions, fulfilled from a point outside the State;

and';

(2) in subsection (c)--

(A) by inserting `or fulfilling transactions' after `making sales';

(B) by inserting `or transactions' after `sales' the other places it appears;

(C) by striking `of tangible personal property' the first place it appears; and

(D) by striking `, of tangible personal property'; and

(3) in subsection (d)(1) by striking `the sale of, tangible personal property' and inserting `a sale or transaction,'.

(b) Application of Prohibitions to Other Business Activity Taxes- Title I of the Act entitled `An Act relating to the power of the States to impose net income taxes on income derived from interstate commerce, and authorizing studies by congressional committees of matters pertaining thereto', approved September 14, 1959 (15 U.S.C. 381 et seq.) is amended by adding at the end the following:

`SEC. 105. Beginning with taxable periods beginning on or after the first day of the first calendar year that begins after the date of the enactment of the Business Activity Tax Simplification Act of 2006, the prohibitions of section 101 that apply with respect to net income taxes shall also apply with respect to each other business activity tax, as defined in section 4 of the Business Activity Tax Simplification Act of 2006. A State or political subdivision thereof may not assess or collect any tax which by reason of this section the State or political subdivision may not impose.'.

(c) Effective Date of Subsection (a) AMENDMENTS- The amendments made by subsection (a) shall apply with respect to the imposition, assessment, and collection of taxes for taxable periods beginning on or after the first day of the first calendar year that begins after the date of the enactment of the Business Activity Tax Simplification Act of 2006.

SEC. 3. JURISDICTIONAL STANDARD FOR STATE AND LOCAL NET INCOME TAXES AND OTHER BUSINESS ACTIVITY TAXES.

(a) In General- No taxing authority of a State shall have power to impose, assess, or collect a net income tax or other business activity tax on any person relating to such person's activities in interstate commerce unless such person has a physical presence in the State during the taxable period with respect to which the tax is imposed.

(b) Requirements for Physical Presence- For the purposes of subsection (a), a person has a physical presence in a State only if such person's business activities in the State include any of the following, collectively and on more than 21 days in the aggregate, during such person's taxable year:

(1) Being an individual physically in the State, or assigning one or more employees to be in the State, except that the following shall be excluded in determining whether such 21-day limit has been exceeded:

(A) Activities in connection with a possible or an actual purchase of goods or services, for consumption by the person's business.

(B) Gathering news for print, broadcast, or other distribution through the news media.

(C) Meeting government officials for purposes other than selling goods or services, for consumption by such government.

(D) Merely attending educational or training conferences, seminars or other similar functions.

(E) Nonprofit participation in charitable activities.

(2) Using the services of an agent (excluding an employee) to establish or maintain the market in the State, if such agent does not perform business services in the State for any other person during such taxable year.

(3) The leasing or owning of tangible personal property or of real property in the State, except that the following shall be excluded in determining whether such 21-day limit has been exceeded:

(A) Tangible personal property located in the State for purposes of being assembled, manufactured, processed, or tested by another person for the benefit of the owner or lessee, or used to furnish a service to the owner or lessee by another person.

(B) Marketing or promotional materials distributed in the State.

(C) Any property to the extent used ancillary to an activity excluded from the computation of the 21-day period based on paragraph (1) or (2).

(c) Taxable Periods Not Consisting of a Year- If the taxable period for which the tax is imposed is not a year, then any requirements expressed in days for establishing physical presence under this Act shall be adjusted pro rata accordingly.

(d) Exceptions-

(1) DOMESTIC BUSINESS ENTITIES AND INDIVIDUALS DOMICILED IN, OR RESIDENTS OF, THE STATE- Subsection (a) does not apply with respect to--

(A) a person (other than an individual) that is incorporated or formed under the laws of the State (or domiciled in the State) in which the tax is imposed; or

(B) an individual who is domiciled in, or a resident of, the State in which the tax is imposed.

(2) TAXATION OF PARTNERS AND SIMILAR PERSONS- This section shall not be construed to modify or affect any State business activity tax liability of an owner or beneficiary of an entity that is a partnership, an S corporation (as defined in section 1361 of the Internal Revenue Code of 1986 (26 U.S.C. 1361)), a limited liability company, a trust, an estate, or any other similar entity, if the entity has a physical presence in the State in which the tax is imposed.

(3) PRESERVATION OF AUTHORITY- This section shall not be construed to modify, affect, or supersede the authority of a State to bring an enforcement action against a person or entity that may be engaged in an illegal activity, a sham transaction, or any perceived or actual abuse in its business activities if such enforcement action does not modify, affect, or supersede the operation of any provision of this Act or of any other Federal law.

(4) CERTAIN ACTIVITIES- With respect to the following, subsection (b) shall be read by substituting `at least one day' for `more than 21 days in the aggregate':

(A) The sale within a State of tangible personal property, if delivery of the property originates and is completed within the State.

(B) The performance of services that physically affect real property within a State.

(5) EXCEPTION RELATING TO CERTAIN PERFORMANCES AND SPORTING EVENTS- With respect to the taxation of the following, subsection (b) shall be read by substituting `at least one day' for `more than 21 days in the aggregate':

(A) A live performance in a State, before a live audience of more than 100 individuals.

(B) A live sporting event in a State before more than 100 spectators present at the event.

(e) Rule of Construction- This section shall not be construed to modify, affect, or supersede the operation of title I of the Act entitled `An Act relating to the power of the States to impose net income taxes on income derived from interstate commerce, and authorizing studies by congressional committees of matters pertaining thereto', approved September 14, 1959 (15 U.S.C. 381 et seq.).

SEC. 4. DEFINITIONS.

The following definitions apply in this Act:

(1) NET INCOME TAX- The term `net income tax' has the meaning given that term for the purposes of the Act entitled `An Act relating to the power of the States to impose net income taxes on income derived from interstate commerce, and authorizing studies by congressional committees of matters pertaining thereto', approved September 14, 1959 (15 U.S.C. 381 et seq.).

(2) OTHER BUSINESS ACTIVITY TAX-

(A) The term `other business activity tax' means--

(i) a tax imposed on or measured by gross receipts, gross income, or gross profits;

(ii) a business license tax;

(iii) a business and occupation tax;

(iv) a franchise tax;

(v) a single business tax or a capital stock tax; or

(vi) any other tax imposed by a State on a business for the right to do business in the State or measured by the amount of, or economic results of, business or related activity conducted in the State.

(B) The term `other business activity tax' does not include a sales tax, a use tax, or a similar tax, imposed as the result of the sale or acquisition of goods or services, whether or not denominated a tax imposed on the privilege of doing business.

(3) STATE- The term `State' means any of the several States, the District of Columbia, or any territory or possession of the United States, or any political subdivision of any of the foregoing.

(4) TANGIBLE PERSONAL PROPERTY- The term `tangible personal property' does not include computer software that is owned and licensed by the owner to another person.

SEC. 5. EFFECTIVE DATE.

Except as provided otherwise in this Act, this Act applies with respect to taxable periods beginning on and after the first day of the first year that begins after the date of enactment of this Act.

Union Calendar No. 330

To regulate certain State taxation of interstate commerce; and for other purposes.

July 17, 2006

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