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HomeMy WebLinkAbout4924 ORDINANCE NO. or'3 AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 3.48 of the Bremerton Municipal Code entitled "Business and Occupation Tax" to update the provisions of Chapter 3.48 consistent with the requirements of EHB 2030 passed by the state legislature during the 2003 legislative session. WHEREAS, the City Council passed ordinance No. 4843 on December 18, 2002, adopting a new business and occupation tax code for the city; and WHEREAS, the state legislature passed EHB 2030 on April 21, 2003, establishing certain mandatory provisions to be included in business and occupation tax codes; and WHEREAS, cities having business and occupation tax codes must adopt the mandatory provisions by December 31, 2004; and WHEREAS, the City Council desires to amend its business and occupation tax code in compliance with EHB 2030; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTIONL Section 3.48.030 of the Bremerton Municipal Code entitled "Definitions" relating to Business and Occupation Taxes is hereby amended to read as follows: 3.48.030 DEFINITIONS. In constming the provisions of this chapter, the following definitions shall be applied. Words in the singular number shall include the plural, and the plural shall include the singular. "Advance," "reimbursement." (1) "Advance" means money or credits received by a taxpayer from a customer or client with which the taxpayer is to pay costs or fees on behalf of the customer or chent. (2) "Reimbursement" means money or credits received from a customer or client to repay the taxpayer for money or credits expended by the taxpayer in payment of costs or fees of the customer or client. "Agricultural product," "farmer." (1) "Agricultural product" means any product of plant cultivation or anhnal husbandry including, but not limited to: A product of horticulture, grain cultivation, vermiculture, viticulture, or aquaculture as defined in RCW 15.83.480; plantation Christmas trees; tuff; or any animal including but not limited to an animal that is a private sector cultured aquatic product as defined in RCW 15.83.480, or a bird, or insect, or the substances obtained from such an animal. "Agricultural product" does not include anhnals intended to be pets. (2) "Farmer" means any person engaged in the business of growing or producing, upon the person's own lands or upon the lands in which the person has a present right of possession, any 1 2004 Amend~nent- B&O Tax agricultural product whatsoever for sale. "Farmer" does not include a person using such products as ingredients in a manufacturing process, or a person growing or producing such products for the person's own consumption. "Farmer" does not include a person selling any animal or substance obtained therefi-om in connection with the person's business of operating a stockyard or a slaughter or packing house. "Farmer" does not include any person in respect to the business of taking, cultivating, or raising timber. "Artistic or cultural organization". As used in this chapter: (1) The term "artistic or cultural organization" means an organization which is organized and operated exclusively for the purpose of providing a~istic or cultural exhibitions, presentations, or performances or cultural or art education programs, as defined in subsection (10) of this section, for viewing or attendance by the general public. (2) The organization must be a not-for-profit corporation under chapter 24.03 RCW. (3) The organization must be managed by a governing board of not less than eight (8) individuals none of whom is a paid employee of the organization or by a corporation sole under chapter 24.12 RCW. (4) No part of its income may be paid cFrrectly or indirectly to its members, stockholders, officers, cFncectors, or trustees except in the form of services rendered by the corporation in accordance with its purposes and bylaws. (5) Salary or compensation paid to its officers and executives must be only for actual services rendered, and at levels comparable to the salary or compensation of like positions within the state. (6) Assets of the corporation must be irrevocably dedicated to the activities for which the exemption is granted and, on the liquidation, dissolution, or abandonment by the corporation, may not inure directly or indirectly to the benefit of any member or individual except a non-profit organization, association, or corporation which also would be entitled to the exemption. (7) The corporation must be duly licensed or certified when licensing or certification is requ'~red by law or regulation. (8) The amounts received that qualify for exemption must be used for the activities for which the exemption is granted. (9) Services must be available regardless of race, color, national origin, ancestry, religion, age, sex, marital status, sexual orientation, Vietnam or disabled veteran status, or the presence of any mental or physical disability. (10) The term "artistic or cultural exhibitions, presentations, or performances or cultural or art education programs" is limited to: (a) An exhibition or presentation of works of art or objects of cultural or historical sigrdficance, such as those commonly displayed in art or history museums; (b) A musical or dramatic performance or series of performances; or (c) An educational seminar or program, or series of such progrmns, offered by the organization to the general public on an artistic, cultural, or historical subject. "Business." "Business" includes all activities engaged in w/th the object of gain, benefit, or advantage to the taxpayer or to another person or class, d/rectly or indirectly. "Business and occupation tax." "Business and occupation tax" or "gross receipts tax" means a tax imposed on or measured by the value of products, the gross income of the business~ or the gross proceeds of saies, as the case may be, and that is the legal liability of the business. "Cash discount." "Cash discount" means a deduction from the invoiced an~ount allowed by the seller if the bill is paid within a cel~tain time period or before a specified date. 2 2004 Amendment - B&O Tax "City." "City" means City of Bremerton, Washington. "Commercial or industrial use." "Commercial or industrial use" means the following uses of products, including by-products, by the extractor or manufacturer thereof: (1) Any use as a consumer; (2) Any use in the manufacturing of products including articles, substances or commodities; or (3) Consigning, shipping or transfenSng extracted or manufactured products to another either without consideration or in the performance of contracts. "Competitive telephone service." "Competitive telephone service" means the providing by any person of telecommunications equipment or apparatus, or service related to that equipment or apparatus such as repair or maintenance service, if the equipment or apparatus is of a type which can be provided by persons that are not subject to regulation as telephone compardes under Title 80 RCW and for which a separate charge is made. "Consumer." "Consumer" means the following: (1) Any person who purchases, acquires, owns, holds, or uses any tangible or intangible personal property irrespective of the nature of the person's business and including, among others, without limiting the scope hereof, persons who install, repair, clean, alter, improve, construct, or decorate real or personal property of or for a consumer other than for the purpose of: (a) resale as tangible or intangible personal property in the regular course of business; (b) incorporating such property as an ingredient or component of real or personal property when installing, repairing, cleaning, altering, imprinting, improving, constructing, or decorating such real or personal property of or for consumers; (c) incorporating such property as an ingredient or component of a new product or as a chemical used in processing a new product when the pr/mary purpose of such chemical is to create a cherrfical reaction directly through contact with an ingredient of a new product; or (d) consuming the property in producing ferrosilicon which is subsequently used in producing magnesium for sale, if the primary purpose of such property is to create a chemical reaction directly through contact with an ingredient of ferrosilicon; (2) Any person engaged in any business activity taxable under BMC 3.48.050(1)(g); (3) Any person who purchases, acquires, or uses any competitive telephone service as herein defined, other than for resale in the regular course of business; (4) Any person who purchases, acquires, or uses any personal, business, or professional service defined as a retail sale or retail service in BMC 3.48.030 other than for resale in the regular course of business; (5) Any person who is an end user of software; (6) Any person engaged in the business of"public road construction" in respect to tangible personal propel~ when that person incorporates the tangible personal property as an ingredient or component of a publicly-owned street, place, road, highway, easement, right-of-way, mass public transportation terminal or parldng facility, bridge, tunnel, or trestle by installing, placing or spreading the property in or upon the right-of-way of a publicly-owned street, place, road, highway, easement, bridge, tunnel, or trestle or in or upon the site ora publicly-owned mass public transportation terminal or parking facility; (7) Any person who is an owner, lessee or has the fight of possession to or an easement in real property which is being constructed, repaired, decorated, improved, or otherwise altered by a person engaged in business; 3 2004 Amendment - B&O Tax (8) Any person who is an owner, lessee, or has the right of possession to personal property which is being constructed, repaired, improved, cleaned, imprinted, or otherwise altered by a person engaged in business; (9) Any person engaged in "government contracting." Any such person shall be a consumer within the meaning of this subsection in respect to tangible personal property incorporated into, installed in, or attached to such building or other structure by such person; Nothing contained in this or any other subsection of this section shall be construed to modify any other defihition of"consumer." "Deficiency." "Deficiency" means the amount of tax imposed by law less any tax reported by the taxpayer on a tax return. "Director." "Director" means the Director of Finance of the City or any officer, agent or employee of the City designated to act on the Director's behal£ "Eligible gross receipts tax." The term "eligible gross receipts tax" means a tax which: (1) Is imposed on the act or privilege of engaging in business activities within section .050; and (2) Is measured by the gross volume of business, in terms of gross receipts and is not an income tax or value added tax; and (3) Is not, pursuant to law or custom, separately stated from the sales price; and (4) Is not a sales or use tax, business license fee, franchise fee, royalty or severance tax measured by volume or weight, or concession charge, or payment for the use and enjoyment of property, property right or a privilege; and (5) Is a tax imposed by a local jurisdiction, whether within or without the State of Washington, and not by a Country, State, Province, or any other non-local jurisdiction above the County level. "Engaging in business" - "nexus" ( 1 ) The term "engaging in business" means commencing, conducting, or continuing in business, and also the exercise of corporate or franchise powers, as well as liquidating a business when the liquidators thereof hold themselves out to the pubhc as conducting such business. (2) This section sets forth examples of activities that constitute engaging in business in the City, and establishes safe harbors for certain of those activities so that a person who meets the criteria may engage in de minimus business activities in the City without having to register and obtain a business license or pay City business and occupation taxes. The activities listed in this section are illustrative only and are not intended to narrow the definition of "engaging in business" in subsection (1). If an activity is not listed, whether it constitutes engaging in business in the City shall be determined by considering all the facts and circumstances and applicable law. (3) Witliout being all inclusive, any one of the following activities conducted within the City by a person, or its employee, agent, representative, independent contractor, broker or another acting on its behalf constitutes engaging in business and requires a person to register and obtain a business license pursuant to Chapter 5.02 BMC. (a) Owning, renting, leasing, maintaining, or having the right to use, or using, tangible personal property, intangible personal property, or real property permanently or temporarily located in the City. (b) Owning, renting, leasing, using, or maintairfing, an office, place of business, or other establishment in the City. (c) Soliciting sales. 4 2004 Amendment - B&O Tax (d) Making repairs or providing maintenance or service to real or tangible personal property, including warranty work and property maintenance. (e) Providing technical assistance or service, including quality control, product inspections, warranty work, or similar services on or in connection with tangible personal prop~ty sold by the person or on its behalf. (f) Installing, constructing, or supervising installation or construction of, real or tangible personal property. (g) Soliciting, negotiating, or approving fi:anchise, license, or other similar agreements. (h) Collecting current or delinquent accounts. (i) Picking up and transporting tangible personal property, solid waste, construction debris, or excavated materials. (j) Providing disinfecting and pest control services, employment and labor pool services, home nursing care, janitorial services, appraising, landscape architectural services, security system services, surveying, and real estate services including the listing of homes and managing real property. (k) Rendering professional services such as those provided by accountants, architects, attorneys, auctioneers, consultants, engineers, professional athletes, barbers, baseball clubs and other sports organizations, chemists, consultants, psychologists, court reporters, dentists, doctors, detectives, laboratory operators, teachers, veterinarians. (I) Meeting with customers or potential customers, even when no sales or orders are solicited at the meetings. (m) Training or recruiting employees, agents, representatives, independent contractors, brokers or others, domiciled or operating on a job in the City, acting on its behalf, or for customers or potential customers. (n) Investigating, resolving, or otherwise assisting in resolving customer complaints. (o) In-store stocking or manipulating products or goods, sold to and owned by a customer, regardless of where sale and delivcny of the goods took place. (p) Delivering goods in vehicles owned, rented, leased, used, or maintained by the person or another acting on its behalf. (q) Accepting or executing a contract with the City, incespective of whether goods or services are delivered within or without the City, or whether the person's office or place of business is within or without the City. (4) If a person, or its employee, agent, representative, independent contractor, broker or another acting on the person's behalf, engages in no other activities in or with the City but the following, it need not register and obtain a business license and pay tax. (a) Meeting with suppliers of goods and services as a customer. (b) Meeting with government representatives in their official capacity, other than those pc~orming contracting or purchasing functions. (c) Attending meetings, such as board meetings, retreats, seminars, and conferences, or other meetings wherein the person does not provide training in connection with tangible personal property sold by the person or on its behalf. (d) Renting tangible or intangible property as a customer when the property is not used in the City. 5 2004 Amendment- B&O Tax (e) Attending, but not participating in a "trade show" or "multiple vendor events". Persons participating at a trade show shall review the City's trade show or multiple vendor event ordinances. (f) Mere delivery of goods via common carder. (g) Conducting advertising through the mail. (h) Soliciting sales by phone from a location outside the City. (5) A seller located outside the City merely delivering goods into the City by means of common carrier is not required to register and obtain a business license provided that it engages in no other business activities in the City. (6) "Nexus" A person has created nexus with the City if, whether itself or by its eanployees, agents, representative, independent contractors, brokers or others acting on its behalf, it: (a) is physically present in the City; (b) endeavors to maintain a share of the market within the City; or (c) avails itself of the economic benefits of the City. The City expressly intends that engaging in business include any activity sufficient to establish nexus for purposes of applying the tax under the law and the constitutions of the United States and the State of Washington. Nexus is presumed to continue as long as the taxpayer benefits fi.om the activity that constituted the original nexus generating contact or subsequent contacts. "Extracting." "Extracting" is the activity engaged in by an extractor and is reportable under the extracting classification. "Extractor." "Extractor" means every person who fi'om the person's own land or fi'om the land of another under a right or license granted by lease or contract, either directly or by contracting with others for the necessary labor or mechanical services, for sale or for commercial or industrial use, mines, quarries, takes or produces coal, oil, natural gas, ore, stone, sand, gravel, clay, mineral or other natural resource product; or fells, cuts or takes timber, Chhstmas trees, other than plantation Christmas trees, or other natural products; or takes fish, or takes, cultivates, or raises shellfish, or other sea or inland water foods or products. "Extractor" does not include persons performing under contract the necessary labor or mechanical services for others; persons cultivating or raising fish entirely within confined rearing areas on the person's own land or on land in which the person has a present right of possession; or persons who fell, cut, or take plantation Christmas trees fi.om the person's own land or fi.om land in which the person has a present right of possession. "Extractor for Hire" "Extractor for hire" means a person who performs under contract necessary labor or mechanical services for an extractor. "Government contracting." "Government contracting" means the constructing, repairing, decorating, or hnproving of new or existing buildings or other structures under, upon, or above real property of or for the United States, any instrumentality thereof, or a county or city housing authority created pursuant to RCW Chapter 35.82, including the installing or attaching of any article of tangible personal property therein or thereto, whether or not such personal property becomes a part of the realty by virtue of installation. The term shall include the cleating of land and the moving of earth of or for the Untied States, any instrumentality, thereof, or a county of city housing authority. "Gross income of the business." "Gross income of the business" means the value proceeding or accruing by reason of the cf tk~c business activity engaged in and includes gross proceeds of sales, compensation for the rendition of services, gains realized fi.om trading in stocks, bonds, or other evidences of indebtedness, interest, discount, rents, royalties, fees, commissions, dividends, and other emoluments however designated, all without any deduction on account of the cost of tangible property 6 2004 Amendment - B&O Tax sold, the cost of materials used, labor costs, interest, discount, delivery costs, taxes, or any other expense whatsoever paid or accrued and without any deduction on account of losses. "Gross proceeds of sales." "Gross proceeds of sales" means the value proceeding or accruing from the sale of tangible personal property or for services rendered, without any deduction on account of the cost of property sold, the cost of materials used, labor costs, interest, discount paid, delivery costs, taxes, or any other exp~nse whatsoever paid or accrued and without any deduction on account of losses. "In this City," "within this City." "In this City" or "within this City" includes all federal areas lying within the corporate city limits of the City. "Janitorial Services." The tem~ "Janitorial Services" shall mean those cleaning and care taking services ordinarily performed by commercial janitor service businesses including, but not limited to, wall and window washing, floor cleaning and waxing, and the cleaning in place of rags, drapes and upholstery. The term does not include painting, papering, repairing, furnace or septic tank cleaning, snow removal, sandblasting, or cleanup related to construction activities. "Manufacturing." "Manufacturing" means the activity conducted by a manufacturer and is reported under the manufacturing classification. "Manufacturer," "to manufacture." (1) "Manufacturer" means every person who, either directly or by contracting with others for the necessary labor or mechanical services, manufactures for sale or for commercial or industrial use from the person's own materials or ingredients any products. When the owner of equipment or facilities furnishes, or sells to the customer prior to manufacture, materials or ingredients equal to less than twenty percent (20%) of the total value of all materials or ingredients that become a part of the finished product, the oxvner of the equipment or facilities will be deemed to be a processor for hire and not a manufacturer. A business not located in this City that is the owner of materials or ingredients processed for it in this City by a processor for hire shall be deemed to be engaged in business as a manufacturer in this City. (2) "To manufacture" means all activities of a commercial or industrial nature wherein labor or skill is applied, by hand or machinery, to materials or ingredients so that as a result thereof a new, different or useful product is produced for sale or commercial or industrial use, and shall include: (a) the production of special made or custom made articles; Co) the production of dental appliances, devices, restorations, substitutes, or other dental laboratory products by a dental laboratory or dental technician; (c) crashing and/or blending of rock, sand, stone, gravel, or ore; and (d) the producing of articles for sale, or for commercial or induslrial use from raw materials or prepared materials by giving such materials, articles, and substances of trade or commerce new forms, qualifies, properties or combinations including, but not limited to, such activities as making, fabricating, processing, refining, mixing, slaughtering, packing, aging, curing, mild curing, preserving, canning, and the preparing and freezing of fresh fruits and vegetables. "To manufacture" shall not include the production of computer software if the computer solSware is delivered from the seller to the purchaser by means other than tangible storage media, including the delivery by use of a tangible storage media where the tangible storage media is not physically transferred to the purchaser. "Newspaper," "magazine," "periodical." "Newspaper" means a publication offered for sale regularly at stated intervals at least once a week and printed on newsprint in tabloid or bmadsheet format folded loosely together without stapling, glue, or any other binding of any kind. 7 2004 Atnendment - B&O Tax "Magazine, or periodical" means any printed publication, other than a ne~vspaper, issued and offered for sale regularly at staled intervals at least once every three (3) months, including any supplement or special edition of the publication. Any publication meeting this definition qualifies regardless of its content. "Non-profit corporation or non-profit organization." "Non-profit corporation or non-profit organization" means a corporation or organization in which no part of the income can be distributed to its members, directors, or officers and that holds a current tax exempt status as provided under Sec. 501(c)(3) of the Internal Revenue Code, as hereafter an~ended, or is specifically exempted from the requirement to apply for its tax exempt status under Sec. 501(c)(3) of the Internal Revenue Code, as hereafter amended. Where the term non-profit organization is used, it is meant to include a non-profit corporation. "Office", "place of business." "Office" or "place of business" means a fixed location or permanent facility where the regular business of the person is conducted and which is either owned by the person or over which the person exercises legal dominion and control. The regular business of the person is presumed conducted at a location: (1) Whose address the person uses as its business mailing address, (2) Containing a telephone line listed in a public telephone directory or other similar publication under the business name; and (3) Where the person holds itself` out to the general public as conducting its regular business through signage or other means; and (4) Where the person is required to obtain any appropriate state and local business license or registration unless they are exempted by law from such requirement. A vehicle such as a pick-up, van, truck, boat or other motor vehicle is not an office or place of business. A post office box is not an office or place of business. If a person has an office or place of business, the person's home is not an office or place of business unless it meets the criteria for office or place of business above. If a person has no office or place of business, the person's home or apartment within the City will be deemed the place of business. "Person." "Person" means any individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, finn, co-partnership, joint venture, club, company, joint stock company, business trust, municipal corporation, political subdivision of the State of'Washington, corporation, limited liability company, association, society, or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, non-profit, or othenvise and the United States or any instrumentality thereof. "Precious metal bullion or monetized bullion." "Precious metal bullion" means any precious metal which has been put through a process of smelting or refining, including, but not limited to, gold, silver, platinum, rhodium, and palladium, and which is in such state or condition that its value depends upon its contents and not upon its form. For purposes of this section, "monetized bullion" means coins or other forms of money manufactured from gold, silver, or other metals and heretofore, now, or hereafter used as a medium of'exchange under the laws of this state, the United States, or any foreign nation, but does not include coins or money sold to be manufactured into jewelry or works of art. "Processing for hire." "Processing for hire" means the performance of labor and mechanical services upon materials or ingredients belonging to others so that as a result a new, different or useful product is produced for sale, or connnercial or industrial use. A processor for hire is any person who would be a manufacturer if that person were performing the labor and mechanical services upon that person's own materials or ingredients. Ifa person furnishes, or sells to the customer prior to manufacture, materials or ingredients equal to twenty percent (20%) or more of the total value of all materials or 8 2004 Amendment - B&O Tax ingredients that become a part of the finished product the person will be deemed to be a manufacturer and not a processor for hire. "Product", "Byproduct." "Product" means tangible personal property, including articles, substances, or commodities created, brought forth, extracted, or manufactured by human or mechanical effort. "Byproduct" means any additional product, other than the principal or intended product, which results fi.om extracting or manufacturing activities and which has a market value, without regard to whether or not such additional product was an expected or intended result of the extracting or manufacturing activities. "Public road construction." "Public road construction" means the building, repairing, or improving of any street, place, road, highway, easement, fight-of-way, mass public transportation terminal or parking facility, bridge, tunnel, or trestle which is owned by a municipal corporation or a political subdivision of the state or by the United States and which is used or to be used primarily for foot or vehicular traffic including mass transportation vehicles of any kind. "Reporting period." "Reporting period" means: (1) A one-month period beginning the first day of each calendar month (monthly); or (2) A three-month period beginning the first day of January, April, July or October of each year (quarterly); or (3) A twelve-month period beg/nning the first day of January of each year (annual). "Retailing." "Retailing" means the activity of engaging in making sales at retail and is reported under the retailing classification. "Retail Service." "Retail service" shall include the sale of or charge made for personal, business, or ~rofessional servi-ces including amounts designated as interest, rents, fees, admission, and other service emoluments however designated, received by persons engaging in the following business activities: (1) Amusement and recreation services including but not limited to golf, pool, billiards, skating, bowling, swimming, bungee jumping, ski lifts and tows, basketball, racquet ball, handball, squash, tennis, batting cages, day trips for sightseeing purposes, and others, when provided to consumers. "Amusement and recreation services" also include the provision of related facilities such as basketball courts, tennis courts, handball courts, swimming pools, and charges made for providing the oppommity to dance. The term "amusement and recreation services" does not include instructional lessons to learn a particular activity such as tennis lessons, swimming lessons, or archery lessons. (2) Abstract, title insurance, and escrow services; (3) Credit bureau services; (4) Service charges associated with tickets to professional sporting events; and (5) The following personal services: Physical fitness services, tanning salon services, tattoo parlor services, steam bath services, turkish bath services, escort services, and dating services. (6) The ten~a shall also include the renting or leasing of tangible personal proper~y to consumers and the rental of equipment with an operator. "Return." "Return" means any document a person is required by the City to file to satisfy or establish a tax or fee obligation that is a&ninistered or collected by the City and that has a statutorily defined due date. "Royalties." "Royalties" means compensation for the use of intangible property, such as copyrights, patents, licenses, franchises, traden~arks, tradenames, and similar items. "Sale," "casual or isolated sale." (1) "Sale" means any transfer of the ownership of, title to, or possession of, property for a valuable consideration and includes any activity classified as a "sale at retail," "retail sale, or "retail 9 2004 Amendment - B&O Tax service." It includes renting or leasing, conditional sale contracts, leases with option to purchase, and any contract under which possession of the property is given to the purchaser but title is retained by the vendor as security for the payment of the purchase price. It also includes the furnishing of food, drink, or meals for compensation whether consumed upon the premises or not. (2) "Casual or isolated sale" means a sale made by a person who is not engaged in the business of selling the type of property involved on a routine or continuous basis. "Sale at retail," "retail sale." (1) "Sale at retail" or "retail sale" means every sale of tangible personal property (including articles produced, fabricated, or imprinted) to ail persons irrespective of the nature of their business and including, among others, without limiting the scope hereof, persons who install, repair, clean, alter, improve, construct, or decorate real or personal property of or for consumers, other than a sale to a person who presents a resale certificate under RCW 82.04.470 and who: (a) Purchases for the purpose of resale as tangible personal property in the regular course of business without intervening use by such person; or (b) Installs, repairs, cleans, alters, imprints, improves, constructs, or decorates real or personal property of or for consumers, if such tangible personal property becomes an ingredient or component of such real or personal property without intervening use by such person; or (c) Purchases for the purpose of consuming the property purchased in producing for sale a new article of tangible personal property or substance, of which such property becomes an ingredient or component or is a chemical used in processing, when the primary purpose of such chemical is to create a chemical reaction directly through contact with an ingredient of a new article being produced for sale; or (d) Purchases for the purpose of consuming the property purchased in producing ferrosilicon which is subsequently used in producing magnesium for sale, if the primary purpose of such property is to create a chemical reaction directly through contact with an ingredient of ferrosilicon; or (e) Purchases for the purpose of providing the property to consumers as part of competitive telephone service, as defined in RCW 82.04.065. The term shall include every sale of tangible personal property which is used or consumed or to be used or consumed in the performance of any activity classified as a "sale at retail" or "retail sale" even though such property is resold or utilized as provided in (a), Co), (c), (d), or (e) of this subsection following such use. (2) "Sale at retail" or "retail sale" also means every sale of tangible personal property to persons engaged in any business activity which is taxable under BMC 3.48.050(1)(g). (3) "Sale at retail" or "retail sale" shall include the sale of or charge made for tangible personal property consumed and/or for labor and services rendered in respect to the following: (a) The installing, repairing, cleaning, altering, imprinting, or improving of tangible personal property of or for consumers, including charges made for the mere use of facilities in respect thereto, but excluding charges made for the use of coin-operated laundry facilities when such facilities are situated in an apartment house, rooming house, or mobile home park for the exclusive use of the tenants thereof, and also excluding sales of laundry service to nonprofit health care facilities, and excluding services rendered in respect to live animals, birds and insects; (b) The constructing, repairing, decorating, or miproving of new or existing buildings or other structures under, upon, or above real property of or for consumers, including 10 2004 Amendment - B&O Tax the installing or attaching of any article of tangible personal property therein or thereto, whether or not such personal property becomes a part of the realty by virtue of installation, and shall also include the sale of services or charges made for the clearing of land and the moving of earth excepting the mere leveling of land used in commercial farming or agriculture; (c) The charge for labor and services rendered in respect to constructing, repairing, or improving any structure upon, above, or under any real property owned by an owner who conveys the property by title, possession, or any other means to the person performing such construction, repair, or improvement for the purpose of performing such construction, repair, or improvement and the property is then reconveyed by title, possession, or any other means to the original owner; (d) The sale of or charge made for labor and services rendered in respect to the cleaning, fumigating, razing or moving of existing buildings or structures, but shall not include the charge made for janitorial services, which is taxed as a service in this chapter; (e) The sale of or charge made for labor and services rendered in respect to automobile towing and similar automotive transportation services, but not in respect to those required to report and pay taxes under chapter 82.16 RCW; (f) The sale of and charge made for the furnishing of lodging and all other services, except network telephone service and cable service, by a hotel, rooming house, tourist court, motel, trailer camp, and the granting of any similar license to use real property, as distinguished from the renting or leasing of real property, and it shall be presumed that the occupancy of real property for a continuous period of one month or more constitutes a rental or lease of real property and not a mere license to use or enjoy the same; (g) The sale of or charge made for tangible personal property, labor and services to persons taxable under (a), (b), (c), (d), (e), and (f) of this subsection when such sales or charges are for property, labor and services which are used or consumed in whole or in part by such persons in the performance of any activity defined as a "sale at retail" or "retail sale" even though such property, labor and services may be resold after such use or consumption. Nothing contained in this subsection shall be construed to modify subsection (1) o£this section and nothing contained in subsection (1) of this section shall be construed to modify this subsection. (4) "Sale at retail" or "retail sale" shall also include the providing of competitive telephone service to consumers. (5) "Sale at retail" or "retail sale" shall also include the sale of canned software other than a sale to a person who presents a resale certificate under RCW 82.04.470, regardless of the method of delivery to the end user, but shall not include custom software or the customization of canned software. (6) "Sale at retail" or "retail sale" shall also include the sale of or charge made for labor and services rendered in respect to "public road construction." (7) "Sale at retail" or "retail sale" shall also include the sale of or charge made for labor and services rendered in respect to "government contracting." (8) "Sale at retail" or "retail sale" shall also include automobile parking and storage garage services; (9) "Sale at retail" or "retail sale" shall also include landscape maintenance and horticultural services but excluding (i) horticultural services provided to farmers and (ii) pruning, lrirmning, repairing, removing, and cleating of trees and brush near electric transmission or distribution lines or equipment, ifperfomned by or at the direction of an electric utility; 11 2004 Amendment - B&O Tax (10) "Sale at retail" or "retail sale" shall not include the sale of services or charges made for the clearing of land and the moving of earth of or for the United States, any instrumentality thereof, or a county or city housing authority. Nor shall the tem~ include the sale of sc~ices or charges made for cleaning up for the United States, or its instrumentalities, radioactive waste and other byproducts of weapons production and nuclear research and development. ~This is reported under the service or other classification). (11) "Sale at retail" or "retail sale" shall not include the sale of or charge made for labor and services rendered for environmental remedial action as defined in I~CW 82.04.2635(2) (This is reported under the service and other classification). "Sale at wholesale," "wholesale sale." "Sale at wholesale" or "wholesale sale" means any sale of tangible personal property which is not a retail sale, and any charge made for labor and services rendered for persons who are not consumers, in respect to real or personal property, if such charge is expressly defined as a retail sale when rendered to or for consumers;. Sale at wholesale also includes the sale of network telephone service to a telecommunications company as defined in RCW 80.04.010 for the purpose of resale, as contemplated by RCW 35.21.715. "Services." "Services" means any business activity other than or in addition to those defined in this section. "Software", "canned software," "custom software," "customization of canned software," "master copies," "retained rights." (1) "Canned software" means software that is created fi~r sale to more than one (1) person. For purposes of this chapter, canned sol%vare is deemed to be tangible personal property regardless of the method of delivery-tangible media (e.g., disk or installed on hardware) or intangible (e.g., electronically over telecommunications paths). (2) "Custom software" means software created for a single person. (3) "Custom/zation of canned software" means any alteration, modification, or development of applications using or incorporating canned software to specific individualized requirements of a single person. Customization of canned software: includes individualized configuration of sog,,vare to work with other software and computer hardware but does not include routine installation. Customization of canned soxq:ware does not change the underlying character or taxability of the original canned software. (4) "Master copies" of software means copies of sofiware from wh/ch a software developer, author, inventor, publisher, licensor, sublicensor, or distributor makes copies for sale or license. The software encoded on a master copy and the media upon which the software resides are both ingredients of the master copy. (5) "Retained rights" means any and all rights, including intellectual property rights such as those rights arising from copyrights, patents, and trade secret laws, that are owned or are held under contract or license by a software developer, author, inventor, publis'her, licensor, sublicensor, or distributor. (6) "Software" means any information, progran~, or routine, or any set o£one (1) or more programs, routines, or collections of information used, or intended for use, to convey information that causes one or more computers or pieces of computer-related peripheral equipment, or any combination thereof, to perform a task or set of tasks. "Software" includes the associated documentation, materials, or ingredients regardless of the media upon which that docmnentation is provided, that describes the code and its use, operation, and maintenance and that typically is delivered with the code to the consumer. All software is classified as either canned or custom. 12 2004 Amendment - B&O Tax "Successor." "Successor" means any person to whom a taxpayer quitting, selling out, exchanging, or disposing of a business sells or otherwise conveys, directly or indirectly, in bulk and not in the ordinary course of the taxpayer's business, any part of the matc~als, supplies, merchandise, inventory, fixtures, or equipment of the taxpayer. Any person obligated to fulfill the terms ora contract shall be deemed a successor to any contractor defaulting in the performance of any contract as to which such person is a surety or guarantor. "Taxpayer." "Taxpayer" means any "person", as herein defined, required to have a business license under this chapter or liable for the collection of any tax or fee under this chapter, or who engages in any business or who performs any act for which a tax or fee is imposed by this chapter. "Tax year," "taxable year." "Tax year" or "taxable year" means the calendar year. "Tuition fee." "Tuition fee" includes library, laboratory, health service and other special fees, and amounts charged for room and board by an educational institution when the property or service for which such charges are made is furnished exclusively to the students or faculty of such institution. "Educational institution," as used in this section, means only those institutions created or generally accredited as such by the state and includes educational programs that such educational institution cosponsors with a non-profit organization, as defined by the Internal Revenue Code Section 501(c)(3), as hereafter amended, if such educational institution grants college credit for coursework successfully completed through the educational program, or an approved branch campus of a foreign degree- granting institution in compliance with chapter 28B.90 RCW, and in accordance with RCW 82.04.4332 or defined as a degree-granting institution under RCW 28B.85.010(3) and accredited by an accrediting association recognized by the United States secretary of education, and offering to students an educational program of a general academic nature or those institutions which are not operated for profit and which are privately endowed under a deed of trust to offer instruction in trade, industry, and agriculture, but not including specialty schools, business colleges, other trade schools, or similar institutions. "Value proceeding or accruing." '¥alue proceeding or accruing" means the consideration, whether money, credits, rights, or other property expressed in terms of money, a person is entitled to receive or which is actually received or accrued. The term shall be applied, in each case, on a cash receipts or accrual basis according to which method of accounting is regularly employed in keeping the books of the taxpayer. The value proceeding or accruing from sales on the installment plan under conditional contracts of sale shall be reported as of the dates when the payments become due. "Value of products." (1) The value of products, including by-products, extracted or manufactured, shall be detennined by the gross proceeds derived from the sale thereof whether such sale is at ~vholesale or at retail, to which shall be added all subsidies and bonuses received from the purchaser or from any other person with respect to the extraction, ruanufacmre, or sale of such products or by-products by the seller. (2) Where such products, including by-products, are extracted or manufactured for cormnercial or industrial use; and where such products, including by-products, are shipped, transported or transferred out of the City, or to another person, without prior sale or are sold under circumstances such that the gross proceeds from the sale are not indicative of the true value of the subject matter of the sale; the value shall correspond as nearly as possible to the gross proceeds fi-om sales in this state of sinfilar products of like quality and character, and in similar quantities by other taxpayers, plus the mnount of subsidies or bonuses ordinarily payable by the purchaser or by any third person with respect to the extraction, manufacture, or sale of such products. In the absence of sales of similar products as a guide to value, such value may be determined upon a cost basis. In such cases, 13 2004 Amendment - B&O Tax there shall be included every item of cost attributable to the particular article or article extracted or manufactured, including direct and indirect overhead costs. The Director may prescribe roles for the purpose of ascertaining such values. (3) Notwithstanding subsection (2) above, the value of a product manufactured or produced for purposes of serving as a prototype for the development of a new or improved product shall correspond to (a) the retail selling price of such new or improved product when first offered for sale; or (b) the value of materials incorporated into the prototype in cases which the new or improved product is not offered for sale. "Wholesaling." "Wholesaling" means engagqng in the activity of making sales at wholesale, and is reported under the wholesaling classification. SECTION2. Section 3.48.050 of the Bremerton Municipal Code entitled "Imposition of the Tax - Tax or Fee Levied" relating to Business and Occupation Taxes is hereby amended to read as follows: 3.48.050 IMPOSITION OF THE TAX - TAX OR FEE LEVIED. (1) Tax Lcvi?,a, Imposition of the tax - tax or fee levied. Except as provided in subsection (2) of this section, tZb'here is hereby levied upon and shall be collected fi.om every person a tax for the act or privilege of engaging in business activities within the City, whether the person's office or place of business be within or without the City. The tax shall be in amounts to be determined by application of rates against gross proceeds of sale, gross income of business, or value of products, including by-products, as the case may be, as follows: (a) Extractor. Upon every person engaging within the City in business as an extractor; as to such persons the amount of the tax with respect to such business shall be equal to the value of the products, including by-products, extracted for sale or for commercial or industrial use, multiplied by the rate of one and six-tenths of one percent (.0016). The measure of the tax is the value of the products, including by-products, so extracted, regardless of the place of sale or the fact that deliveries may be made to points outside the City. Co) Manufacturer. Upon every person engaging within the City in business as a manufacturer; as to such persons the amount of the tax with respect to such business shall be equal to the value of the products, including by-products, manufactured, multiplied by the rate of one and six- tenths of one percent (.0016). The measure of the tax is the value of the products, including by- products, so manufactured, regardless of the place of sale or the fact that deliveries may be made to points outside the City. (c) Wholesale. Upon every person engaging within the City in the business of making sales at wholesale, as to such persons, the amount of tax with respect to such business shall be equal to the gross proceeds of such sales of the business without regard to the place of delivery of articles, commodities or merchandise sold, multiplied by the rate of one and six-tenths of one percent (.0016). (d) Retail. Upon every person engaging within the City in the business of making sales at retail; as to such persons, the amount of tax with respect to such business shall be equal to the gross proceeds of such sales of the business without regard to the place of delivery of articles, commodities or merchandise sold, multiplied by the rate of one and one quaxter of one percent (.00125). (e) Printing and Publishing. Upon every person engaging within the City in the business of (i) printing, (ii) both printing and publishing newspapers, magazines, periodicals, books, 14 2004 Amendment - B&O Tax nmsic, and other printed items, (iii) publishing newspapers, magazines and periodicals, (iv) extracting for hire, and (v) processing for hire; as to such persons, the amount of tax on such business shall be equal to the gross income of the business multiplied by the rate of one and nine-tenths of one percent (.0019). (t) Retail service. Upon every person engaging within the City in the business of making sales of retail services; as to such persons, the amount of tax with respect to such business shall be equal to the gross proceeds of sales multiplied by the rate of two tenths of one percent (.002). (g) Service. Upon every other person engag/ng within the City in any business activity other than or in addition to those enumerated in the above subsections; as to such persons, the amount of tax on account of such activities shall be equal to the gross income of the business multiplied by the rate of two tenths of one percent (.002). This subsection includes, mnong others, and without limiting the scope hereof (whether or not title to material used in the performance of such business passes to another by accession, merger or other than by outfight sale), persons engaged in the business of developing, or producing custom software or of customizing canned software, producing royalties or commissions, and persons engaged in the business of rendering any type of service which does not constitute a sale at retail or a sale at wholesale or a retail service. (2) The gross receipts tax knposed in this section shall not apply to any person whose gross proceeds of sales, gross income of the business, and value of products, including by-products, as the case may be, tkom all activities conducted within the City during any calendar year is equal to or less than $20,000. (3) The tax levied pursuant to this chapter shall be in addition to any other tax or fee that may be imposed or levied by the City of Bremerton. SECTION3. A new section, Section 3.48.076 entitled "Assignment of Gross Income Derived From Intangibles" relating to Business and Occupation Taxes is hereby added to the Bremerton Municipal Code to read as follows: 3.48.076 ASSIGNMENT OF GROSS INCOME DERIVED FROM INTANGIBLES. Gross income derived from the sale of intangibles such as royaltie% trademark% patents, or goodwill shall be assigned to the .jurisdiction where the person is domiciled (its headquarters is located). SECTION4. Section 3.48.090 of the Bremerton Municipal Code entitled "Exemptions" relating to Business and Occupation Taxes is hereby amended to read as follows: 3.48.090 EXEMPTIONS. (1) Non-Profit Corporations Or Non-Profit Organizations. This section shall not apply to non-profit organizations exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as hereafter amended, except with respect to retail sales of such persons. 15 2004 Amendtnent - B&O Tax (2) Health maintenance organization, health care service contractor= certified health plan. Beginning on January 1, 2000 tiffs chapter does not apply to any health maintenance organization, health care service contractor, or certified health plan in respect to premimns or prepayments that are taxable under RCW 48.14.0201. (3) Public utilities. This chapter shall not apply to any person in respect to a business activity with respect to which tax liability is specifically imposed under the provisions of Chapter 3.50 BMC. (4) Investments - dividends from subsidiary corporations. This chapter shall not apply to amounts derived by persons, other than those engaging in banking, loan, security, or other financial businesses, fi'om investments or the use of money as such, and also amounts derived as dividends by a parent from its subsidiary corporations. (5) International banking facilities. This chapter shall not apply to the gross receipts of an international banking fadility. As used in this subsection, an "international banking facility" means a facility represented by a set of asset and liability accounts segregated on the books and records of a commercial bank, the principal office of which is located in th/s state, and wkich is incorporated and doing business under the laws of the United States or of this state, a United States branch or agency of a foreign bank, an Edge corporation organized under Section 25(a) of the Federal Reserve Act, 12 United States Code 611-631, or an Agreement corporation having an agreement or undertaking with the Board of Governors of the Federal Reserve System under Section 25 of the Federal Reserve Act, 12 United States Code 601-604(a), that includes only intemational banking facihty time deposits (as defined in subsection (a)(2) of Section 204.8 of Regulation D (12 CFR Part 204), as promulgated by the Board of Governors of the Federal Reserve System), and international banking facility extensions of credit (as defined in subsection (a)(3) of Section 204.8 of Regulation D). (6) Insurance business. This chapter shall not apply to amounts received by any person or agent who is an insurer upon which a tax based on gross premiums is paid to the state pursuant to RCW 48.14.020; provided that the provisions of this subsection shall not exempt any person engaging in the business of insurance as a broker as defined in RCW 48.17.020 or as a sohcitor as defined in RCW 48.17.030; and provided further, that the provisions of this subsection shall not exempt any boncFmg company fi.om tax with respect to gross income derived from the completion of any contract as to which it is a surety, or as to any liability as successor to the liability of the defaulting contractor. (7) Farmers - agriculture. This chapter shall not apply to any farmer in respect to amounts received from selling fruits, vegetables, benies, butter, eggs, fish, milk poultry, meats or any other agricultural product that is raised, caught, produced, or manufactured by such persons. (8) Athletic exhibitions. TNs chapter shall not apply to any person in respect to the business of conducting boxing contests and sparring or wrestling matches and exhibitions for the conduct of which a license must be secured from the State Boxing Commission. (9) Racing. This chapter shall not apply to any person in respect to the business of conducting race meets for the conduct of which a license must be secured from the Washington State Horse Rac'mg Commission. (10) Ride sharing. This chapter does not apply to any funds received in the course of commuter ride sharing or ride sharing for persons with special transportation needs in accordance with RCW 46.74.010. (11) Employees. This chapter shall not apply to: (a) Any person in respect to the person's emplo3qnent in the capacity as an employee or servant as distinguished from that of an independent contractor. For the purposes of this 16 2004 Amendment - B&O Tax subsection, the defi~fition of employee shall include those persons that are defined in the lntemal Revenue Code, as hereafter mnended. (b) A booth renter, as defined by RCW 18.16.020, is an independent contractor for purposes of this chapter. (12) Amounts derived from sale of real estate. This chapter shall not apply to gross proceeds dehved fi.om the sale of real estate. This, however, shall not be construed to allow an exemption of amounts received as commissions from the sale of real estate, nor as fees, handling charges, discounts, interest or similar financial charges resulting from, or relating to, real estate transactions, lifts chapter shall also not apply to amounts received for the rental of real estate if the rental income is derived from a contract to rent for a continuous period of thirty (30) days or longer. (13) Mortgage brokers' third-party provider services trust accounts. This chapter shall not apply to amounts received from trust accounts to mortgage brokers for the payment of third-party costs if the accounts are operated in a manner consistent with RCW 19.146.050 and any roles adopted by the director of financial institutions. (14) Amounts derived from manufacturing, selling or distributing motor vehicle fuel. This chapter shall not apply to the manufacturing, selling, or distributing motor vehicle fuel, as the term "motor vehicle fuel" is defined in RCW 82.36.010 and exempt under RCW 82.36.440, provided that any fuel not subjected to the state fuel excise tax, or any other applicable deduction or exemption, will be taxable under this chapter. (15) Amounts derived from liquor, and the sale or distribution of liquor. This chapter shall not apply to liquor as defined in RCW 66.04.010 and exempt in RCW 66.08.120. (16) Casual and isolated sales. This chapter shall not apply to the gross proceeds derived fi:om casual or isolated sales. (17) Accommodation sales. This chapter shall not apply to sales for resale by persons regularly engaged in the business of making retail sales of the type of property so sold to other persons similarly engaged in the business of selling such property where (1) the amount paid by the buyer does not exceed the amount paid by the seller to the vendor in the acquisition of the article and (2) the sale is made as an accommodation to the buyer to enable the buyer to fill a bona fide existing order of a customer or is made within fourteen days to reimburse in kind a previous accommodation sale by the buyer to the seller. (18) Taxes collected as trust funds. This chapter shall not apply to amounts collected by the taxpayer from third parties to satisfy third party obligations to pay taxes such as the retail sales tax, use tax, and admission tax. SECTION 5. Severabilitv. If any one or more sections, subsections, or sentences of this ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this ordinance and the same shall remain in full force and effect. 17 2004 Amendment- B&O Tax SECTION 6. F~ffective Date. This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. APPROVED by the City Council the~.~4_.,e(_2_ day of ~,;~,,~.4 ~ ,2004 PASSED by the City Council the c:K.2~ day of ~.~a~_e~j ,2004 DAREN NYGREN, Cour~l President CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: ~A~ILA JOl~NfO~,~C[ty Clerk RO~C~R A. LUBOVICHi~ PUBLISHED the o~_~ta day of ~ ,2004 EFFECTIVE the~;~/.4~, day of {, ~t.a~, ~,~,~ ,200IV ORDINANCE NO. -5/'~o~'~ 17 a R:\LEGAL\Ordinances\Finance\2004 B&O Tax Amendment. doc 18 2004 Amendment- B&O Tax AlalqDAVIT OF PUBLICATION No. Ad # 100135020 STATE OF WASHINGTON COUNTY OF KITSAP I, Christine Nelson, being first duly swom on oath, deposes and says: That she is now, and at all times embraced in the publication herein mentioned was the principal clerk of the printers and publishers of THE SUN; that said newspaper has been approved as a legal newspaper by order of the Superior Court of the County of Kitsap, in which County it is published and is now and has been for more than six months prior to the date of the publication hereinafter referred to, published in the English language continually as a daily newspaper in Bmmerton, Kitsap County, Washington, and is now and during all of said time, was printed in an office maintained in the aforesaid place of publication of said newspaper; December 29~' , 2004 and that such newspaper was mgulurly distributed to its subscribers during all of said period. That the full mount of the fee charged for the foregoing publication is the sum of $36.42 which amount has not been paid. ,,> qT...- .... -::4, ¢ ........ _-""7 ..x Rv '.. : ~: 2'0 · ¢~0% ':~0 5 (Signature of Principal Clerk) Subscri ~. s%v~;~Oe .f0."~m~ this day of December 30~, 2004. 3%,.. ..'~ ? ORDINANCE NO. 4924' AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Chapter 3.48 of the Bremerton Municipal Code entitled "Business and Occupation Tax" to update the provisions of Chapter 3.48 consistent with the requirements of El-lB 2030 passed by the state legislature during the 2003 legislative session.- APPROVED by the City Council the 15th day of December, 2004.- PASSED by the City Council the 22nd day of December, 2004.- The full text of this ordinance is available from the City Clerk's Office, 345 6th Street, Bremerton, WA 98337-1873.- December 29, 2004°°#100135020-