0001| | 0002| HOUSE BILL 967 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| INTRODUCED BY | 0005| DELORES C. WRIGHT | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO TAXATION; PROVIDING A DEDUCTION FROM GROSS RECEIPTS | 0013| AND GOVERNMENTAL GROSS RECEIPTS FOR RECEIPTS FROM THE SALE OF | 0014| HEALTH SERVICES, PRESCRIPTION DRUGS AND PROSTHETIC DEVICES; | 0015| REPEALING THE INCOME TAX CREDIT FOR PRESCRIPTION DRUGS; | 0016| AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978. | 0017| | 0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0019| Section 1. Section 7-9-3 NMSA 1978 (being Laws 1978, | 0020| Chapter 46, Section 1, as amended) is amended to read: | 0021| "7-9-3. DEFINITIONS.--As used in the Gross Receipts and | 0022| Compensating Tax Act: | 0023| A. "department" means the taxation and revenue | 0024| department, the secretary of taxation and revenue or any | 0025| employee of the department exercising authority lawfully | 0001| delegated to that employee by the secretary; | 0002| B. "buying" or "selling" means any transfer of | 0003| property for consideration or any performance of service for | 0004| consideration; | 0005| C. "construction" means building, altering, | 0006| repairing or demolishing in the ordinary course of business | 0007| any: | 0008| (1) road, highway, bridge, parking area or | 0009| related project; | 0010| (2) building, stadium or other structure; | 0011| (3) airport, subway or similar facility; | 0012| (4) park, trail, athletic field, golf course | 0013| or similar facility; | 0014| (5) dam, reservoir, canal, ditch or similar | 0015| facility; | 0016| (6) sewerage or water treatment facility, | 0017| power generating plant, pump station, natural gas compressing | 0018| station, gas processing plant, coal gasification plant, | 0019| refinery, distillery or similar facility; | 0020| (7) sewerage, water, gas or other pipeline; | 0021| (8) transmission line; | 0022| (9) radio, television or other tower; | 0023| (10) water, oil or other storage tank; | 0024| (11) shaft, tunnel or other mining | 0025| appurtenance; | 0001| (12) microwave station or similar facility; or | 0002| (13) similar work; | 0003| "construction" also means: | 0004| (14) leveling or clearing land; | 0005| (15) excavating earth; | 0006| (16) drilling wells of any type, including | 0007| seismograph shot holes or core drilling; or | 0008| (17) similar work; | 0009| D. "financial corporation" means any savings and | 0010| loan association or any incorporated savings and loan company, | 0011| trust company, mortgage banking company, consumer finance | 0012| company or other financial corporation; | 0013| E. "engaging in business" means carrying on or | 0014| causing to be carried on any activity with the purpose of | 0015| direct or indirect benefit; | 0016| F. "gross receipts" means the total amount of money | 0017| or the value of other consideration received from selling | 0018| property in New Mexico, from leasing property employed in New | 0019| Mexico, from selling services performed outside New Mexico the | 0020| product of which is initially used in New Mexico or from | 0021| performing services in New Mexico. In an exchange in which the | 0022| money or other consideration received does not represent the | 0023| value of the property or service exchanged, "gross receipts" | 0024| means the reasonable value of the property or service | 0025| exchanged. | 0001| (1) "Gross receipts" includes: | 0002| (a) any receipts from sales of tangible | 0003| personal property handled on consignment; | 0004| (b) the total commissions or fees | 0005| derived from the business of buying, selling or promoting the | 0006| purchase, sale or leasing, as an agent or broker on a | 0007| commission or fee basis, of any property, service, stock, bond | 0008| or security; | 0009| (c) amounts paid by members of any | 0010| cooperative association or similar organization for sales or | 0011| leases of personal property or performance of services by such | 0012| organization; and | 0013| (d) amounts received from transmitting | 0014| messages or conversations by persons providing telephone or | 0015| telegraph services. | 0016| (2) "Gross receipts" excludes: | 0017| (a) cash discounts allowed and taken; | 0018| (b) New Mexico gross receipts tax, | 0019| governmental gross receipts tax and leased vehicle gross | 0020| receipts tax payable on transactions for the reporting period; | 0021| (c) taxes imposed pursuant to the | 0022| provisions of any local option gross receipts tax that is | 0023| payable on transactions for the reporting period; | 0024| (d) any gross receipts or sales taxes | 0025| imposed by an Indian nation, tribe or pueblo provided that the | 0001| tax is approved, if approval is required by federal law or | 0002| regulation, by the secretary of the interior of the United | 0003| States and provided further that the gross receipts or sales | 0004| tax imposed by the Indian nation, tribe or pueblo provides a | 0005| reciprocal exclusion for gross receipts, sales or gross | 0006| receipts-based excise taxes imposed by the state or its | 0007| political subdivisions; | 0008| (e) any type of time-price differential; | 0009| and | 0010| (f) amounts received solely on behalf of | 0011| another in a disclosed agency capacity. | 0012| (3) When the sale of property or service is | 0013| made under any type of charge, conditional or time-sales | 0014| contract or the leasing of property is made under a leasing | 0015| contract, the seller or lessor may elect to treat all receipts, | 0016| excluding any type of time-price differential, under such | 0017| contracts as gross receipts as and when the payments are | 0018| actually received. If the seller or lessor transfers his | 0019| interest in any such contract to a third person, the seller or | 0020| lessor shall pay the gross receipts tax upon the full sale or | 0021| leasing contract amount, excluding any type of time-price | 0022| differential; | 0023| G. "manufacturing" means combining or processing | 0024| components or materials to increase their value for sale in the | 0025| ordinary course of business, but does not include construction; | 0001| H. "person" means: | 0002| (1) any individual, estate, trust, receiver, | 0003| cooperative association, club, corporation, company, firm, | 0004| partnership, limited liability company, limited liability | 0005| partnership, joint venture, syndicate or other entity, | 0006| including any gas, water or electric utility owned or operated | 0007| by a county, municipality or other political subdivision of the | 0008| state; or | 0009| (2) any national, federal, state, Indian or | 0010| other governmental unit or subdivision, or any agency, | 0011| department or instrumentality of any of the foregoing; | 0012| I. "property" means real property, tangible | 0013| personal property, licenses, franchises, patents, trademarks | 0014| and copyrights. Tangible personal property includes | 0015| electricity and manufactured homes; | 0016| J. "leasing" means any arrangement whereby, for a | 0017| consideration, property is employed for or by any person other | 0018| than the owner of the property, except that the granting of a | 0019| license to use property is the sale of a license and not a | 0020| lease; | 0021| K. "service" means all activities engaged in for | 0022| other persons for a consideration, which activities involve | 0023| predominantly the performance of a service as distinguished | 0024| from selling or leasing property. "Service" includes | 0025| activities performed by a person for its members or | 0001| shareholders. In determining what is a service, the intended | 0002| use, principal objective or ultimate objective of the | 0003| contracting parties shall not be controlling. "Service" | 0004| includes construction activities and all tangible personal | 0005| property that will become an ingredient or component part of a | 0006| construction project. Such tangible personal property retains | 0007| its character as tangible personal property until it is | 0008| installed as an ingredient or component part of a construction | 0009| project in New Mexico. However, sales of tangible personal | 0010| property that will become an ingredient or component part of a | 0011| construction project to persons engaged in the construction | 0012| business are sales of tangible personal property; | 0013| L. "use" or "using" includes use, consumption or | 0014| storage other than storage for subsequent sale in the ordinary | 0015| course of business or for use solely outside this state; | 0016| M. "secretary" means the secretary of taxation and | 0017| revenue or the secretary's delegate; | 0018| N. "manufactured home" means a moveable or portable | 0019| housing structure for human occupancy that exceeds either a | 0020| width of eight feet or a length of forty feet constructed to be | 0021| towed on its own chassis and designed to be installed with or | 0022| without a permanent foundation; | 0023| O. "initial use" or "initially used" means the | 0024| first employment for the intended purpose and does not include | 0025| the following activities: | 0001| (1) observation of tests conducted by the | 0002| performer of services; | 0003| (2) participation in progress reviews, | 0004| briefings, consultations and conferences conducted by the | 0005| performer of services; | 0006| (3) review of preliminary drafts, drawings and | 0007| other materials prepared by the performer of the services; | 0008| (4) inspection of preliminary prototypes | 0009| developed by the performer of services; or | 0010| (5) similar activities; | 0011| P. "research and development services" means any | 0012| activity engaged in for other persons for consideration, for | 0013| one or more of the following purposes: | 0014| (1) advancing basic knowledge in a recognized | 0015| field of natural science; | 0016| (2) advancing technology in a field of | 0017| technical endeavor; | 0018| (3) the development of a new or improved | 0019| product, process or system with new or improved function, | 0020| performance, reliability or quality, whether or not the new or | 0021| improved product, process or system is offered for sale, lease | 0022| or other transfer; | 0023| (4) the development of new uses or | 0024| applications for an existing product, process or system, | 0025| whether or not the new use or application is offered as the | 0001| rationale for purchase, lease or other transfer of the product, | 0002| process or system; | 0003| (5) analytical or survey activities | 0004| incorporating technology review, application, trade-off study, | 0005| modeling, simulation, conceptual design or similar activities, | 0006| whether or not offered for sale, lease or other transfer; or | 0007| (6) the design and development of prototypes | 0008| or the integration of systems incorporating advances, | 0009| developments or improvements included in Paragraphs (1) through | 0010| (5) of this subsection; [and] | 0011| Q. "local option gross receipts tax" means a tax | 0012| authorized to be imposed by a county or municipality upon the | 0013| taxpayer's gross receipts and required to be collected by the | 0014| department at the same time and in the same manner as the gross | 0015| receipts tax; "local option gross receipts tax" includes the | 0016| taxes imposed pursuant to the Municipal Local Option Gross | 0017| Receipts Taxes Act, Supplemental Municipal Gross Receipts Tax | 0018| Act, Special Municipal Gross Receipts Tax Act, County Local | 0019| Option Gross Receipts Taxes Act, Local Hospital Gross Receipts | 0020| Tax Act, County Correctional Facility Gross Receipts Tax Act | 0021| and such other acts as may be enacted authorizing counties or | 0022| municipalities to impose taxes on gross receipts, which taxes | 0023| are to be collected by the department; | 0024| R. "health service" means a service provided to a | 0025| human being for the prevention, amelioration or cure of any | 0001| traumatic, virulent or bacteriological disease, any injury or | 0002| disfigurement to the human body, however inflicted, that | 0003| requires professional attention, any degenerative disease of | 0004| the human body or any serious mental disturbance, and which | 0005| service is provided by: | 0006| (1) a licensed practitioner if the service is | 0007| within the scope of the practitioner's profession as defined by | 0008| law; or | 0009| (2) a facility licensed by the department of | 0010| health as a hospital, nursing facility, clinic or health | 0011| facility of other similar designation; | 0012| S. "licensed practitioner" means a chiropractor, | 0013| dentist, dental assistant, dental hygienist, medical doctor, | 0014| osteopath, optometrist, physician assistant, podiatrist, | 0015| practical nurse, professional nurse or psychologist who is | 0016| licensed or certified under state law to practice in the state; | 0017| T. "prescription drugs" means insulin and | 0018| substances that are: | 0019| (1) dispensed by or under the supervision of a | 0020| licensed pharmacist or by a physician or other person | 0021| authorized under state law to dispense the substance; | 0022| (2) prescribed for a specified human being by | 0023| a person authorized under state law to prescribe the substance; | 0024| and | 0025| (3) subject to the restrictions on sale | 0001| contained in 21 U.S.C.A. 353(b)(1); and | 0002| U. "prosthetic device" means: | 0003| (1) orthopedic prosthesis, orthopedic braces | 0004| and supports and orthopedic shoes; | 0005| (2) ocular prosthesis; | 0006| (3) a prosthesis or prosthetic device ordered | 0007| as a result of surgery; | 0008| (4) crutches and wheelchairs; and | 0009| (5) replacement parts or related supplies | 0010| designed specifically for any of the items specified in | 0011| Paragraphs (1) through (4) of this subsection." | 0012| Section 2. A new section of the Gross Receipts and | 0013| Compensating Tax Act is enacted to read: | 0014| "[NEW MATERIAL] DEDUCTION--GROSS RECEIPTS TAX AND | 0015| GOVERNMENTAL GROSS RECEIPTS TAX--HEALTH SERVICES--PRESCRIPTION | 0016| DRUGS--PROSTHETIC DEVICES.--Receipts from the following may be | 0017| deducted from gross receipts: | 0018| A. the provision of health services; | 0019| B. sales other than sales for resale of | 0020| prescription drugs; and | 0021| C. sales of prosthetic devices when made by a | 0022| licensed practitioner to the user or consumer of the device and | 0023| sales of prosthetic devices made by a person on the basis of a | 0024| written order issued by a licensed practitioner ordering the | 0025| device for a specific individual." | 0001| Section 3. REPEAL.--Section 7-2-18.3 NMSA 1978 (being | 0002| Laws 1994, Chapter 5, Section 17) is repealed. | 0003| Section 4. APPLICABILITY.--The provisions of Section 3 of | 0004| this act apply to taxable years beginning on or after January | 0005| 1, 1998. | 0006| Section 5. EFFECTIVE DATE.--The effective date of the | 0007| provisions of this act is July 1, 1997. | 0008|  |