CHAPTER 261

FORMERLY

HOUSE BILL NO. 728

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTERS 20, 23, 25, 27, 29 AND 43 OF TITLE 30 AND CHAPTER 96, TITLE 9, DELAWARE CODE, RELATING TO DELAWARE LICENSE FEES AND TAXES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three—fifths of all members elected to each House thereof concurring therein):

Section 1. Amend §2301, Chapter 23, Title 30 of the Delaware Code by striking subsection (a) of said Section in its entirety and substitute in lieu thereof the following:

"(a) Persons as defined in §2701 of this Title engaged in the occupations listed and defined in this Section shall pay annual license taxes at the rates specified below. In addition to the license fee indicated below, each such person shall pay a fee of $25 for each additional branch or business location, except that a finance or small loan agency as defined in paragraph (8) of this Section shall pay the basic annual fee for each place of business.

(1) Advertising agency, $75. 'Advertising agency' includes every person engaged in the business of displaying advertising matter by billboards, posters or circulars, signs or window display, or of undertaking the writing or composition of advertisements for other persons on a commission, rental or flat fee basis.

(2) Amusement conductor, $75. 'Amusement conductor' includes every person engaged in the business of conducting or maintaining or furnishing on a commission or other basis mechanical or electronic devices for entertainment of the general public, for which a charge is made for the use thereof; provided further than an owner of certain of such mechanical or electrical devices operated automatically by insertion of a coin or token shall pay an additional license fee for the business as defined and at the rates prescribed as follows:

'Amusement machine owner' embracing every person engaged in the business of owning and operating either on his own account or by his agent, or by lease to another from such person or his agent, certain of the mechanical or electronic devices referred to in this section for furnishing to the public, music by the playing of records or transcriptions or which constitute a game or other device designed for public amusement, a fee for a license at the rate of $75 for each machine so owned and operated, provided the coin or token necessary to operate such machine is worth 5 cents or more.

(3) Auctioneer, $75. 'Auctioneer' includes every person engaged in the business
of crying sales of real or personal property on behalf of other persons for profit, except as otherwise provided by the provisions of this chapter. Any auctioneer not a citizen of this State shall be required to pay $225 for each county in which he acts as auctioneer. No auctioneer shall be authorized by virtue of the license granted to employ any other person to act as auctioneer in his behalf, except in his own store or warehouse or in his presence, nor shall the term 'auctioneer' apply or extend to a judicial or executive officer making sales in pursuance of any execution, judgment, or decree of any court nor to public sales made by executors or administrator.

(4) Broker, $75. 'Broker' includes every person operating a business of buying and selling for the account of other persons for a commission or for profit, stocks, bonds, currency, negotiable paper, securities and any other intangible personal property.

(5) Circus exhibitor, $750. 'Circus exhibitor' includes every person engaged in the business of exhibiting in a tent, arena, or other open space feats of horsemanship, acrobatic stunts, freaks, trained or wild animals, and other forms of entertainment commonly known as circus. This paragraph shall not be construed to include any circus or carnival for private profit sponsored by or in which any fire company of the State, or any fraternal, veteran's or religious organization shall share in the profits. The license fee for such circus or carnival shall be $300.

(6) Commercial Lessor, $75. 'Commercial Lessor' includes every person who, as sublessor, receives rental income pursuant to any agreement transferring a title interest or possessory interest in real property under a lease of a commercial unit for any term. For this purpose, 'commercial unit' means a structure or that part of a structure which is used for purposes other tt4,.. ;. dwelling unit or farm unit.

(7) Drayperson or mover, $75. 'Drayperson or mover' includes every person operating a business of transporting for profit tangible personal property of other persons.

(8) Finance or small loan agency, $450, 'Finance or small loan agency' includes every person engaged in the business of lending money, with or without security, to other persons, with repayments of the loans to be made by installments or otherwise, but shall not include, either in reference to future or past transactions, banks or trust companies authorized to do banking business in the State under Title 5 of the Delaware Code.

(9) Foreign Sales Corporation (FSC), $150. 'Foreign Sales Corporation' includes every corporation engaged in business as a foreign sales corporation (FSC) as defined in §1902(b) of this Title, except a small foreign sales corporation as defined in §922(b), Subchapter N of Chapter 1 of the Federal Internal Revenue Code.

(10) Foreign Sales Service Corporation (FSSC), $150. 'Foreign Sales Service Corporation' includes every corporation engaged in business as foreign sales service corporation (FSSC) as defined in §1902(b) of this Title.

(11) Hotel, $25 for each room and $30 for each suite. 'Hotel' includes every person engaged in the business of operating a place where the public may, for a consideration, obtain sleeping accommodations and meals and which, in an incorporated town, has at least 10, and in any other place at least 6 permanent bedrooms for the use of guests.

(12) Manufacturer's agent or representative, $75. 'Manufacturer's agent' or 'representative' includes every independent contractor in the business of representing 1 or more manufacturers for purposes of promoting the sale of the goods, product, or line of goods or products of such manufacturer or manufacturers within the State.

(13) Mercantile agency or collection agency, $75. 'Mercantile agency' or 'collection agency' includes every person operating a business of investigation of financial ratings and credit and/or the collection of commercial accounts for other persons, except attorneys-at-law having a license to practice such profession in this State.

(14) Motel, $25 for each room. 'Motel' includes every person engaged In the business of furnishing for a consideration, transient guests with sleeping accommodations, private bath and toilet facilities, linen service and a place to park an automobile and who is not in the business of operating a hotel or tourist home as defined in this section.

(15) Outdoor musical festival promoter, $750. ' Outdoor musical festival promoter' includes every person engaged in the business of organizing, operating, producing or staging musical entertainment in open spaces and not in a permanent structure for a gathering of 1,000 or more persons who pay a consideration or admission charge to view or hear such musical entertainment.

(16) Parking lot or garage operator, $75 for the first lot or garage facility and $35 for each additional facility. 'Parking lot' or 'garage operator' includes every person engaged in the business of operating any motor vehicle parking facility, whether open or enclosed, with space for 10 or more vehicles.

(17) Photographer, $75. 'Photographer' includes every person operating a business of taking, making and/or developing photographs or pictures by action of light for profit or reward. Transient photographers without a regular and established place of business within the State shall pay an additional license tax of $25 for each day of operation within the State.

(18) Real estate broker, $75. 'Real estate broker' includes every person certified as such by the Delaware Real Estate Commission and engaged in the real estate business. It includes those among such persons who deal exclusively or partly with rental property.

(19) Sales representative, $75. 'Sales Representative' includes every person who works in excess of 80 hours in any calendar month in the year selling goods or merchandise door to door. It includes soliciting orders and home demonstrations.

(20) Security business, $115. 'Security business' includes every security business defined in 0201 of Title 24.

(21) Showperson, $375. 'Showperson' includes every person engaged in the business of conducting or operating for profit a public theatre, house or other enclosed place for the exhibition of stage shows or musical presentations, animal shows,- Carnivals for private profit and all other amusements of like character.

(22) Taxicab or bus operator, $45, for the first motor vehicle; $30, for each additional motor vehicle. 'Taxicab' or 'bus operator' includes-every person engaged In the business of the operation of motor vehicles in transporting persons for hire In the accommodation of the general public. A public carrier holding a Certificate of Public Convenience and Necessity issued by the Delaware Transportation Authority of the Department of Transportation authorizing it to operate a taxicab business, which actually operates such taxicab business through the leasing of its taxicab vehicles to independent contractor lessee drivers, shall be -construed to be a 'person' under this paragraph 'engaged in the business of the operation of motor vehicles in transporting persons for hire in the accommodation of the general public' and shall pay the above-specified annual fees for its taxicab motor vehicles which are subject to such leasing for the year involved, and none- of the independent contractor lessee drivers of such vehicles shall be construed to be a 'person engaged in the business of the operation of motor vehicles in transporting persons for htre in the accommodation of the general public' within the meaning of this paragraph. This tax shall not apply however, to the operation of school buses used solely in the transportation of children to and from kindergarten, grade school, vocational school and high school.

(23) Tourist home, $15 for each room. 'Tourist home' includes every person who operates a place where tourists or transients guests, for a consideration, may obtain sleeping accommodations and which has at least 5 permanent bedrooms for the use of tourists or transient guests and who is not in the hotel or motel business as defined in this section.

(24) Trailer park, $10 for each space as specified on a plot plan or as designated by the owner. 'Trailer park', which may also be identified as a Recreational Vehicle Park, or a Tenting Recreation Park, includes any person engaged in the business of operating any place where space Is furnished for units to park and hook up to or use sanitary and/or electrical facilities.. This paragraph shall not apply to mobile home parks.

(25) Transportation agent, $75. 'Transportation agent' includes every person operating a business of selling tickets on behalf of other persons, for transportation by common carriers on a commission basis or for profit.

(26) Travel agency, $225. 'Travel agency' includes every person In the business of operating a full service travel bureau or department which assists In the planning and acquisition of tickets for contemplated trips of its customers by land, Sea or air and for related accommodations."

Section 2. Amend §2301, Chapter 23, Title 30 of the Delaware Code by striking paragraph (e) of said Section in its entirety and substitute in lieu thereof a new paragraph (e) to read as follows:

"(e) 'Gross receipts' is defined as total consideration for services rendered, goods sold, or other income producing transaction within this State, including fees and commissions.

(1) For persons described in 30 Del. C. §2301(a)(4) and (18) the tax imposed under paragraph (d) of this Section shall be imposed on the broker. Salespersons operating in the broker's office shall be exempt from the taxes and fees imposed by paragraphs (b) and (d) of this Section with respect to services performed in connection with the broker's business; provided, however, that commissions and fees paid to such salespersons shall be subject to tax under subsection (d) of this section as though such fees or commissions were received by the broker.

(2) Any person functioning in an 'employee' relationship as defined In the Federal Insurance Contribution Act shall be exempt from this Chapter with respect to his activities as an employee.

(3) In the case of partnerships, professional corporations or associations, the tax imposed under subsection (d) shall be imposed on the aggregate gross receipts of such partnerships, professional corporation or association.

(4) Any person functioning as a 'partner' shall be exempt from this Chapter with respect to his activities solely as a 'partner'.

(5) Gross receipts for businesses described in 30 Del. C. §2301 (a)(1),(3),(4),(12),(13) and (18) shall consist of commissions and fees earned.

(6) Gross receipts for commercial lessors as defined in paragraph (6) of subsection (a) of this section shall consist of the rental payment received for a commercial unit; provided, however, that:

(I) nothing in this Section shall be interpreted to impair a commercial lessor's right under an existing or future lease to require the lessee therein to pay or to reimburse the lessor for the license fees herein imposed as part of the lessee's specified or general obligation to pay or reimburse lessor for gross receipts tax, real estate taxes or other governmental assessments, charges or fees;

(ii) every commercial lessor, who is also a sublessor, shall exclude from gross receipts the amount said lessor pays to another lessor as rent for the same commercial unit; and

(iii) any rental income received by a commercial lessor who has paid the transfer tax pursuant to Section 5402(d), Chapter 54, Title 30 of the Delaware Code shall not be included as gross receipts received by the commercial lessor.

(7) For licenses covered under subsection (b) of this Section, any exception from the gross receipts definition as set forth in this subsection is subject to the rules and regulations as promulgated by the Secretary of Finance."

Section 3. Amend §2301, Chapter 23, Title 30 of the Delaware Code by striking paragraph (f) of said section in its entirety and substituting in lieu thereof the following:

"(f) Paragraphs (5,),(8),(9),(11),(14),(15),(19),(21),(22),(23),(24),(25) and (26)

of subsection (a) of this Section shall be exempt from the additional license fee imposed by subsection (d) of this Section.:

Section 4. Amend §2301(o), Chapter 23, Title 30 of the Delaware Code, by striking the phrase "paragraph (88) of subsection (a) of this section" as it appears in said subsection and in lieu thereof insert the following:

"Section 2301(a)(6) of this Title".

Section 5. Amend §2020, Chapter 20 of the Delaware Code by striking existing subsection (3) of said Section in its entirety and substitute in lieu thereof a new subsection (3) to read as follows:

"(3) 'Commercial activity' is an activity constituting a business licensable under §2301 of this Title, other than any of the following business: amusement conductor, amusement park operator, auctioneer, automobile race operator, bowling alley operator, circus exhibitor, entertainment agent, finance or small loan agency, floor show operator, health spa or health club, junk dealer, motion picture theater, outdoor music festival promoter, pawnbroker, pool table operator, public bath keeper, salvage yard operator and self—service laundry or dry cleaner."

Section 6. Amend §2301(b), Chapter 23, Title 30 of the Delaware Code by striking the symbol and figure "$50" as it appears in said subsection and substitute in lieu thereof the symbol and figure "$75".

Section 7. Amend §2303(a), Chapter 23, Title 30 of the Delaware Code by striking the symbol and figure "$100" as they appear in said subsection and substitute in lieu thereof the symbol and figure "$150".

Section 8. Amend §2304(c), Chapter 23, Title 30 of the Delaware Code by striking the symbol "$3" as they appear in said subsection and substitute in lieu thereof the symbol and figure "$5".

Section 9. Amend §2502(a), Chapter 25, Title 30 of the Delaware Code by striking the symbol and figure "$50" each time it appears in said subsection and substitute In lieu thereof in each instance the symbol and figure "$75".

Section 10. Amend §2702(a), Chapter 27, Title 30 of the Delaware Code by striking the symbol and figure "$50" each time it appears in said subsection and substitute in lieu thereof in each instance the symbol and figure "$75".

Section 11. Amend §§2902(b), 2903(b), 2904(b), 2905(a), 2906(a), and 2907(b), Chapter 29, Title 30 of the Delaware Code by striking the symbol and figure "$50" each time it appears in said subsections and substitute in lieu thereof in each instance the symbol and figure "$75".

Section 12. Amend 552905 (a), 2905(f), and 2906(b), Chapter 29, Title 30 of the Delaware Code by striking the symbol and figure 110" each time they appear in said subsections and substitute in lieu thereof the symbol and figure 325".

Section 13. Amend §4305(a), Chapter 43, Title 30 of the Delaware Code by striking the symbol and figure "$50" and 110" as they appear in said subsection and substitute in lieu thereof, respectively, the symbol and figure "575" and 325".

Section 14. If any provision, clause or phrase of this Act, or the application thereof, to any person or circumstance is adjudged invalid by any court of competent jurisdiction, such judgment shall not invalidate the remainder of this Act or affect the application of the Act or any portion thereof to other persons or circumstances.

Section 15. This Act shall be effective for licenses for license periods beginning on or after January 1, 1991, and for licenses to expire on or after December 31, 1991. However, Section 16 of this bill shall be effective upon enactment into law.

Section 16. Amend §9605(1), Chapter 96, Title 9 of the Delaware Code by striking the word "number" as it appears in paragraph (1) of said subsection and by substituting in lieu thereof the phrase "or federal employer identification number."

Approved July 2, 1990.