Download as PDF
139.010 Definitions for chapter.
As used in this chapter, unless the context otherwise provides:
(1) "Advertising and promotional direct mail" means direct mail the primary
purpose of which is to attract public attention to a product, person, business, or
organization, or to attempt to sell, popularize, or secure financial support for a
product, person, business, or organization. As used in this definition, "product"
means tangible personal property, an item transferred electronically, or a
service;
(2) "Business" includes any activity engaged in by any person or caused to be
engaged in by that person with the object of gain, benefit, or advantage, either
direct or indirect;
(3) "Commonwealth" means the Commonwealth of Kentucky;
(4) "Department" means the Department of Revenue;
(5) (a) "Digital audio-visual works" means a series of related images which,
when shown in succession, impart an impression of motion, with
accompanying sounds, if any.
(b) "Digital audio-visual works" includes movies, motion pictures, musical
videos, news and entertainment programs, and live events.
(c) "Digital audio-visual works" shall not include video greeting cards, video
games, and electronic games;
(6) (a) "Digital audio works" means works that result from the fixation of a series
of musical, spoken, or other sounds.
(b) "Digital audio works" includes ringtones, recorded or live songs, music,
readings of books or other written materials, speeches, or other sound
recordings.
(c) "Digital audio works" shall not include audio greeting cards sent by
electronic mail;
(7) (a) "Digital books" means works that are generally recognized in the ordinary
and usual sense as books, including any literary work expressed in
words, numbers, or other verbal or numerical symbols or indicia if the
literary work is generally recognized in the ordinary or usual sense as a
book.
(b) "Digital books" shall not include digital audio-visual works, digital audio
works, periodicals, magazines, newspapers, or other news or information
products, chat rooms, or Web logs;
(8) (a) "Digital code" means a code which provides a purchaser with a right to
obtain one (1) or more types of digital property. A "digital code" may be
obtained by any means, including electronic mail messaging or by
tangible means, regardless of the code's designation as a song code,
video code, or book code.
(b) "Digital code" shall not include a code that represents:
1.
A stored monetary value that is deducted from a total as it is used
by the purchaser; or
2.
A redeemable card, gift card, or gift certificate that entitles the
(9)
(a)
(b)
(10) (a)
(b)
(c)
(11) (a)
(b)
(12) (a)
holder to select specific types of digital property;
"Digital property" means any of the following which is transferred
electronically:
1. Digital audio works;
2. Digital books;
3. Finished artwork;
4. Digital photographs;
5.
Periodicals;
6. Newspapers;
7.
Magazines;
8. Video greeting cards;
9. Audio greeting cards;
10. Video games;
11. Electronic games; or
12. Any digital code related to this property.
"Digital property" shall not include digital audio-visual works or satellite
radio programming;
"Direct mail" means printed material delivered or distributed by United
States mail or other delivery service to a mass audience or to addressees
on a mailing list provided by the purchaser or at the direction of the
purchaser when the cost of the items are not billed directly to the
recipient.
"Direct mail" includes tangible personal property supplied directly or
indirectly by the purchaser to the direct mail retailer for inclusion in the
package containing the printed material.
"Direct mail" does not include multiple items of printed material delivered
to a single address;
"Finished artwork" means final art that is used for actual reproduction by
photomechanical or other processes or for display purposes.
"Finished artwork" includes:
1.
Assemblies;
2.
Charts;
3.
Designs;
4.
Drawings;
5.
Graphs;
6.
Illustrative materials;
7.
Lettering;
8.
Mechanicals;
9.
Paintings; and
10. Paste-ups;
"Gross receipts" and "sales price" mean the total amount or
consideration, including cash, credit, property, and services, for which
(b)
(c)
tangible personal property, digital property, or services are sold, leased,
or rented, valued in money, whether received in money or otherwise,
without any deduction for any of the following:
1.
The retailer's cost of the tangible personal property or digital
property sold;
2.
The cost of the materials used, labor or service cost, interest,
losses, all costs of transportation to the retailer, all taxes imposed on
the retailer, or any other expense of the retailer;
3.
Charges by the retailer for any services necessary to complete the
sale;
4.
Delivery charges, which are defined as charges by the retailer for
the preparation and delivery to a location designated by the
purchaser including transportation, shipping, postage, handling,
crating, and packing; and
5.
Any amount for which credit is given to the purchaser by the retailer,
other than credit for tangible personal property or digital property
traded when the tangible personal property or digital property traded
is of like kind and character to the property purchased and the
property traded is held by the retailer for resale.
"Gross receipts" and "sales price" shall include consideration received by
the retailer from a third party if:
1.
The retailer actually receives consideration from a third party and
the consideration is directly related to a price reduction or discount
on the sale to the purchaser;
2.
The retailer has an obligation to pass the price reduction or discount
through to the purchaser;
3.
The amount of consideration attributable to the sale is fixed and
determinable by the retailer at the time of the sale of the item to the
purchaser; and
4.
One (1) of the following criteria is met:
a.
The purchaser presents a coupon, certificate, or other
documentation to the retailer to claim a price reduction or
discount where the coupon, certificate, or documentation is
authorized, distributed, or granted by a third party with the
understanding that the third party will reimburse any seller to
whom the coupon, certificate, or documentation is presented;
b.
The price reduction or discount is identified as a third-party
price reduction or discount on the invoice received by the
purchaser or on a coupon, certificate, or other documentation
presented by the purchaser; or
c.
The purchaser identifies himself or herself to the retailer as a
member of a group or organization entitled to a price reduction
or discount. A "preferred customer" card that is available to any
patron does not constitute membership in such a group.
"Gross receipts" and "sales price" shall not include:
1.
Discounts, including cash, term, or coupons that are not reimbursed
by a third party and that are allowed by a retailer and taken by a
purchaser on a sale;
2.
Interest, financing, and carrying charges from credit extended on the
sale of tangible personal property, digital property, or services, if the
amount is separately stated on the invoice, bill of sale, or similar
document given to the purchaser;
3.
Any taxes legally imposed directly on the purchaser that are
separately stated on the invoice, bill of sale, or similar document
given to the purchaser; or
4.
The amount charged for labor or services rendered in installing or
applying the tangible personal property, digital property, or service
sold, provided the amount charged is separately stated on the
invoice, bill of sale, or similar document given to the purchaser.
(d) As used in this subsection, "third party" means a person other than the
purchaser;
(13) "In this state" or "in the state" means within the exterior limits of the
Commonwealth and includes all territory within these limits owned by or ceded
to the United States of America;
(14) (a) "Lease or rental" means any transfer of possession or control of tangible
personal property for a fixed or indeterminate term for consideration. A
lease or rental shall include future options to:
1.
Purchase the property; or
2.
Extend the terms of the agreement and agreements covering trailers
where the amount of consideration may be increased or decreased
by reference to the amount realized upon sale or disposition of the
property as defined in 26 U.S.C. sec. 7701(h)(1).
(b) "Lease or rental" shall not include:
1.
A transfer of possession or control of property under a security
agreement or deferred payment plan that requires the transfer of title
upon completion of the required payments;
2.
A transfer of possession or control of property under an agreement
that requires the transfer of title upon completion of the required
payments and payment of an option price that does not exceed the
greater of one hundred dollars ($100) or one percent (1%) of the
total required payments; or
3.
Providing tangible personal property and an operator for the tangible
personal property for a fixed or indeterminate period of time. To
qualify for this exclusion, the operator must be necessary for the
equipment to perform as designed, and the operator must do more
than maintain, inspect, or setup the tangible personal property.
(c) This definition shall apply regardless of the classification of a transaction
under generally accepted accounting principles, the Internal Revenue
Code, or other provisions of federal, state, or local law;
(15) (a) "Machinery for new and expanded industry" means machinery:
1.
2.
Used directly in a manufacturing or processing production process;
Which is incorporated for the first time into a plant facility
established in this state; and
3.
Which does not replace machinery in the plant facility unless that
machinery purchased to replace existing machinery:
a.
Increases the consumption of recycled materials at the plant
facility by not less than ten percent (10%);
b.
Performs different functions;
c.
Is used to manufacture a different product; or
d.
Has a greater productive capacity, as measured in units of
production, than the machinery being replaced.
(b) The term "machinery for new and expanded industry" does not include
repair, replacement, or spare parts of any kind regardless of whether the
purchase of repair, replacement, or spare parts is required by the
manufacturer or vendor as a condition of sale or as a condition of
warranty.
(c) The term "processing production" shall include the processing and
packaging of raw materials, in-process materials, and finished products;
the processing and packaging of farm and dairy products for sale; and the
extraction of minerals, ores, coal, clay, stone, and natural gas;
(16) "Manufacturing" means any process through which material having little or no
commercial value for its intended use before processing has appreciable
commercial value for its intended use after processing by the machinery. The
manufacturing or processing production process commences with the
movement of raw materials from storage into a continuous, unbroken,
integrated process and ends when the product being manufactured is
packaged and ready for sale;
(17) (a) "Occasional sale" includes:
1.
A sale of tangible personal property or digital property not held or
used by a seller in the course of an activity for which he or she is
required to hold a seller's permit, provided such sale is not one (1) of
a series of sales sufficient in number, scope, and character to
constitute an activity requiring the holding of a seller's permit. In the
case of the sale of the entire, or a substantial portion of the nonretail
assets of the seller, the number of previous sales of similar assets
shall be disregarded in determining whether or not the current sale
or sales shall qualify as an occasional sale; or
2.
Any transfer of all or substantially all the tangible personal property
or digital property held or used by a person in the course of such an
activity when after such transfer the real or ultimate ownership of
such property is substantially similar to that which existed before
such transfer.
(b) For the purposes of this subsection, stockholders, bondholders, partners,
or other persons holding an interest in a corporation or other entity are
regarded as having the "real or ultimate ownership" of the tangible
personal property or digital property of such corporation or other entity;
(18) (a)
(19)
(20)
(21)
(22)
"Other direct mail" means any direct mail that is not advertising and
promotional direct mail, regardless of whether advertising and
promotional direct mail is included in the same mailing.
(b) "Other direct mail" includes but is not limited to:
1.
Transactional direct mail that contains personal information specific
to the addressee, including but not limited to invoices, bills,
statements of account, and payroll advices;
2.
Any legally required mailings, including but not limited to privacy
notices, tax reports, and stockholder reports; and
3.
Other nonpromotional direct mail delivered to existing or former
shareholders, customers, employees, or agents, including but not
limited to newsletters and informational pieces.
(c) "Other direct mail" does not include the development of billing information
or the provision of any data processing service that is more than
incidental to the production of printed material;
"Person" includes any individual, firm, copartnership, joint venture, association,
social club, fraternal organization, corporation, estate, trust, business trust,
receiver, trustee, syndicate, cooperative, assignee, governmental unit or
agency, or any other group or combination acting as a unit;
"Permanent," as the term applies to digital property, means perpetual or for an
indefinite or unspecified length of time;
"Plant facility" means a single location that is exclusively dedicated to
manufacturing or processing production activities. For purposes of this section,
a location shall be deemed to be exclusively dedicated to manufacturing
activities even if retail sales are made there, provided that the retail sales are
incidental to the manufacturing activities occurring at the location. The term
"plant facility" shall not include any restaurant, grocery store, shopping center,
or other retail establishment;
"Prewritten computer software" means:
(a) Computer software, including prewritten upgrades, that are not designed
and developed by the author or other creator to the specifications of a
specific purchaser. The combining of two (2) or more prewritten computer
software programs or portions thereof does not cause the combination to
be other than prewritten computer software;
(b) Software designed and developed by the author or other creator to the
specifications of a specific purchaser when it is sold to a person other
than the original purchaser; or
(c) Any portion of prewritten computer software that is modified or enhanced
in any manner, where the modification or enhancement is designed and
developed to the specifications of a specific purchaser. When a person
modifies or enhances computer software of which the person is not the
author or creator, the person shall be deemed to be the author or creator
only of the modifications or enhancements the person actually made. In
the case of modified or enhanced prewritten software, if there is a
reasonable, separately stated charge on an invoice or other statement of
the price to the purchaser for the modification or enhancement, then the
(23)
(24)
(25)
(26)
(27)
modification or enhancement shall not constitute prewritten computer
software;
"Purchase" means any transfer of title or possession, exchange, barter, lease,
or rental, conditional or otherwise, in any manner or by any means whatsoever,
of tangible personal property or digital property transferred electronically for a
consideration and includes:
(a) When performed outside this state or when the customer gives a resale
certificate, the producing, fabricating, processing, printing, or imprinting of
tangible personal property for a consideration for consumers who furnish
either directly or indirectly the materials used in the producing, fabricating,
processing, printing, or imprinting;
(b) A transaction whereby the possession of tangible personal property or
digital property is transferred but the seller retains the title as security for
the payment of the price; and
(c) A transfer for a consideration of the title or possession of tangible
personal property or digital property which has been produced, fabricated,
or printed to the special order of the customer, or of any publication;
"Recycled materials" means materials which have been recovered or diverted
from the solid waste stream and reused or returned to use in the form of raw
materials or products;
"Recycling purposes" means those activities undertaken in which materials that
would otherwise become solid waste are collected, separated, or processed in
order to be reused or returned to use in the form of raw materials or products;
(a) "Repair, replacement, or spare parts" means any tangible personal
property used to maintain, restore, mend, or repair machinery or
equipment.
(b) "Repair, replacement, or spare parts" does not include machine oils,
grease, or industrial tools;
(a)
"Retailer" means:
1.
Every person engaged in the business of making retail sales of
tangible personal property, digital property, or furnishing any
services included in KRS 139.200;
2.
Every person engaged in the business of making sales at auction of
tangible personal property or digital property owned by the person or
others for storage, use or other consumption, except as provided in
paragraph (c) of this subsection;
3.
Every person making more than two (2) retail sales of tangible
personal property or digital property during any twelve (12) month
period, including sales made in the capacity of assignee for the
benefit of creditors, or receiver or trustee in bankruptcy;
4.
Any person conducting a race meeting under the provision of KRS
Chapter 230, with respect to horses which are claimed during the
meeting.
(b) When the department determines that it is necessary for the efficient
administration of this chapter to regard any salesmen, representatives,
peddlers, or canvassers as the agents of the dealers, distributors,
supervisors or employers under whom they operate or from whom they
obtain the tangible personal property or digital property sold by them,
irrespective of whether they are making sales on their own behalf or on
behalf of the dealers, distributors, supervisors or employers, the
department may so regard them and may regard the dealers, distributors,
supervisors or employers as retailers for purposes of this chapter.
(c) 1.
Any person making sales at a charitable auction for a qualifying
entity shall not be a retailer for purposes of the sales made at the
charitable auction if:
a.
The qualifying entity, not the person making sales at the
auction, is sponsoring the auction;
b.
The purchaser of tangible personal property at the auction
directly pays the qualifying entity sponsoring the auction for the
property and not the person making the sales at the auction;
and
c.
The qualifying entity, not the person making sales at the
auction, is responsible for the collection, control, and
disbursement of the auction proceeds.
2.
If the conditions set forth in subparagraph 1. of this paragraph are
met, the qualifying entity sponsoring the auction shall be the retailer
for purposes of the sales made at the charitable auction.
3.
For purposes of this paragraph, "qualifying entity" means a resident:
a.
Church;
b.
School;
c.
Civic club; or
d.
Any other nonprofit charitable, religious, or educational
organization;
(28) "Retail sale" means any sale, lease, or rental for any purpose other than
resale, sublease, or subrent;
(29) (a) "Ringtones" means digitized sound files that are downloaded onto a
device and that may be used to alert the customer with respect to a
communication.
(b) "Ringtones" shall not include ringback tones or other digital files that are
not stored on the purchaser's communications device;
(30) (a) "Sale" means the furnishing of any services included in KRS 139.200;
any transfer of title or possession, exchange, barter, lease, or rental,
conditional or otherwise, in any manner or by any means whatsoever, of
tangible personal property; or digital property transferred electronically for
a consideration, and includes:
1.
The producing, fabricating, processing, printing, or imprinting of
tangible personal property or digital property for a consideration for
purchasers who furnish, either directly or indirectly, the materials
used in the producing, fabricating, processing, printing, or imprinting;
2.
A transaction whereby the possession of tangible personal property
(31)
(32)
(33)
(34)
(35)
(36)
or digital property is transferred, but the seller retains the title as
security for the payment of the price; and
3.
A transfer for a consideration of the title or possession of tangible
personal property or digital property which has been produced,
fabricated, or printed to the special order of the purchaser.
(b) This definition shall apply regardless of the classification of a transaction
under generally accepted accounting principles, the Internal Revenue
Code, or other provisions of federal, state, or local law;
"Seller" includes every person engaged in the business of selling tangible
personal property, digital property, or services of a kind, the gross receipts from
the retail sale of which are required to be included in the measure of the sales
tax, and every person engaged in making sales for resale;
(a) "Storage" includes any keeping or retention in this state for any purpose
except sale in the regular course of business or subsequent use solely
outside this state of tangible personal property or digital property
purchased from a retailer.
(b) "Storage" does not include the keeping, retaining, or exercising any right
or power over tangible personal property for the purpose of subsequently
transporting it outside the state for use thereafter solely outside the state,
or for the purpose of being processed, fabricated, or manufactured into,
attached to, or incorporated into, other tangible personal property to be
transported outside the state and thereafter used solely outside the state;
"Tangible personal property" means personal property which may be seen,
weighed, measured, felt, or touched, or which is in any other manner
perceptible to the senses and includes natural, artificial, and mixed gas,
electricity, water, steam, and prewritten computer software;
"Taxpayer" means any person liable for tax under this chapter;
"Transferred electronically" means accessed or obtained by the purchaser by
means other than tangible storage media; and
(a) "Use" includes the exercise of any right or power over tangible personal
property or digital property incident to the ownership of that property, or
by any transaction in which possession is given, or by any transaction
involving digital property where the right of access is granted.
(b) "Use" does not include the keeping, retaining, or exercising any right or
power over tangible personal property or digital property for the purpose
of:
1.
Selling tangible personal property or digital property in the regular
course of business; or
2.
Subsequently transporting tangible personal property outside the
state for use thereafter solely outside the state, or for the purpose of
being processed, fabricated, or manufactured into, attached to, or
incorporated into, other tangible personal property to be transported
outside the state and thereafter used solely outside the state.
Effective:July 1, 2011
History: Amended 2011 Ky. Acts ch. 33, sec. 1, effective July 1, 2011. -- Amended
2009 Ky. Acts ch. 73, sec. 1, effective July 1, 2009; and ch. 86, sec. 13,
effective August 1, 2009. -- Amended 2008 Ky. Acts ch. 95, sec. 4, effective
August 1, 2008. -- Created 1960 Ky. Acts ch. 5, Art. I, sec. 1, effective February
5, 1960.
Legislative Research Commission Note (8/1/2009). The Reviser of Statutes has
altered the numbering of subsection (26) of this statute from the way it appeared
in 2009 Ky. Acts ch. 73, sec. 1 under the authority of KRS 7.136(1)(c).
Disclaimer: These codes may not be the most recent version. Kentucky may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.