I
110th CONGRESS
2d Session
H. R. 5793
IN THE HOUSE OF REPRESENTATIVES
April 15, 2008
Ms. Zoe Lofgren of California (for herself, Mr. Cannon, Mr. Cohen, Mr. Chabot, Mr. Meeks of New York, and Mr. Sensenbrenner) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To restrict any State or local jurisdiction from imposing a new discriminatory tax on cell phone services, providers, or property.
Short title
This Act may be cited as the
Cell Tax Fairness Act of
2008
.
Moratorium
In general
No State or local jurisdiction shall impose a new discriminatory tax on or with respect to mobile services, mobile service providers, or mobile service property, during the 5-year period beginning on the date of enactment of this Act.
Definitions
In this Act:
Mobile service
The term mobile service
means commercial
mobile radio service, as such term is defined in section 20.3 of title 47, Code
of Federal Regulations, as in effect on the date of enactment of this Act, or
any other service that is primarily intended for receipt on, transmission from,
or use with a mobile telephone, including but not limited to the receipt of a
digital good.
Mobile service property
The term mobile service property
means
all property used by a mobile service provider in connection with its business
of providing mobile services, whether real, personal, tangible, or intangible
and includes, but is not limited to goodwill, licenses, customer lists, and
other similar intangible property associated with such business.
Mobile service provider
The term mobile service provider
means
any entity that sells or provides mobile services, but only to the extent that
such entity sells or provides mobile services.
New discriminatory tax
The term new discriminatory tax
means any tax imposed by a State or local jurisdiction that—
is imposed on or with respect to, or is measured by the charges, receipts, or revenues from or value of—
any mobile service and is not generally imposed, or is generally imposed at a lower rate, on or with respect to, or measured by the charges, receipts or revenues from, other services or transactions involving tangible personal property;
any mobile service provider and is not generally imposed, or is generally imposed at a lower rate, on other persons that are engaged in businesses other than the provision of mobile services; or
any mobile service property and is not generally imposed, or is generally imposed at a lower rate, on or with respect to, or measured by the value of, other property that is devoted to a commercial or industrial use and subject to a property tax levy, except public utility property owned by a public utility subject to rate of return regulation by a State or Federal regulatory authority; and
was not generally imposed and actually enforced on mobile services, mobile service providers, or mobile service property prior to the date of enactment of this Act.
State or local jurisdiction
The term State or local jurisdiction
means any of the several States, the District of Columbia, any territory or
possession of the United States, a political subdivision of any State,
territory, or possession, or any governmental entity or person acting on behalf
of such State, territory, possession, or subdivision and with the authority to
assess, impose, levy, or collect taxes or fees.
Tax
In general
The term tax
means any charge imposed by
any governmental entity for the purpose of generating revenues for governmental
purposes, and is not a fee imposed on an individual entity or class of entities
for a specific privilege, service, or benefit conferred exclusively on such
entity or class of entities.
Exclusion
The
term tax
does not include any fee or charge—
used to preserve and advance Federal universal service or similar State programs authorized by section 254 of the Communications Act of 1934 (47 U.S.C. 254); or
specifically dedicated by a State or local jurisdiction for the support of E–911 communications systems.
Rules of construction
Determination
For purposes of subsection (b)(4), all taxes, tax rates, exemptions, deductions, credits, incentives, exclusions, and other similar factors shall be taken into account in determining whether a tax is a new discriminatory tax.
Application of principles
Except as otherwise provided in this Act, in determining whether a tax on mobile service property is a new discriminatory tax for purposes of subsection (b)(4)(A)(iii), principles similar to those set forth in section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 (49 U.S.C. 11501) shall apply.
Exclusions
Notwithstanding any other provision of this Act—
the term
generally imposed
as used in subsection (b)(4) shall not apply
to any tax imposed only on—
specific services;
specific industries or business segments; or
specific types of property; and
the term
new discriminatory tax
shall not include a new tax or the
modification of an existing tax that—
replaces one or more taxes that had been imposed on mobile services, mobile service providers, or mobile service property; and
is designed so that, based on information available at the time of the enactment of such new tax or such modification, the amount of tax revenues generated thereby with respect to such mobile services, mobile service providers, or mobile service property is reasonably expected to not exceed the amount of tax revenues that would have been generated by the respective replaced tax or taxes with respect to such mobile services, mobile service providers, or mobile service property.
Enforcement
Burden of proof
The burden of proof in any proceeding brought under this Act shall be upon the party seeking relief and shall be by a preponderance of the evidence on all issues of fact.
Relief
In granting relief against a tax which is discriminatory or excessive under this Act with respect to tax rate or amount only, the court shall prevent, restrain, or terminate the imposition, levy, or collection of no more than the discriminatory or excessive portion of the tax as determined by the court.