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ENGROSSED HOUSE
BILL NO. 1955 By: McCall, O'Donnell, and
Waldron of the House
and
Bullard of the Senate
An Act relating to revenue and taxation; amending 68
O.S. 2021, Section 1352 , which relates to sales tax;
defining terms; providing for zero rate of state
sales tax on certain food items; providing for effect
of sales tax levies by political subd ivisions;
prohibiting certain modifications with respect to
levy of sales tax; specifying duration of prohibited
action; providing an effective date; and declaring an
emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 68 O.S. 2021, Section 1352, is
amended to read as follows:
Section 1352. Definitions.
As used in the Oklahoma Sales Tax Code:
1. "Alcoholic beverages" means beverages that are suitable for
human consumption and contain one -half of one percent (0.5%) or more
of alcohol by volume;
2. "Bundled transaction" means the retail sal e of two or more
products, except real property and services to real property, where
the products are otherwise distinct and identifiable, and th e
products are sold for one nonitemized price. A "bundled
transaction" does not include the sale of any produc ts in which the
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sales price varies, or is negotiable, based on the selection by the
purchaser of the products included in the transaction. As us ed in
this paragraph:
a. "distinct and identifiable products " does not include:
(1) packaging such as container s, boxes, sacks, bags,
and bottles, or other materials such as wrapping,
labels, tags, and instruction guides, that
accompany the retail sale of the products and are
incidental or immaterial to the retail sale
thereof, including but n ot limited to, grocery
sacks, shoeboxes, dry cleanin g garment bags and
express delivery envelopes and boxes,
(2) a product provided free of charge with the
required purchase of another product. A product
is provided free of charge if the sales price of
the product purchased do es not vary depending on
the inclusion of the product provided free of
charge, or
(3) items included in the definition of gross
receipts or sales price, pursuant to this
section,
b. "one nonitemized price " does not include a price tha t
is separately identi fied by product on binding sal es
or other supporting sales-related documentation made
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available to the customer in paper or electronic form
including, but not limited to an invoice, bill of
sale, receipt, contract, service agreement, lease
agreement, periodic notice of rates and servic es, rate
card, or price list,
A transaction that otherwise meets the definition of a bundled
transaction shall not be considered a bundled transaction if it is:
(1) the retail sale of tangible personal pr operty and
a service where the tangible personal pro perty is
essential to the use of the service, and is
provided exclusively in connection with the
service, and the true object of the transaction
is the service,
(2) the retail sale of services where one s ervice is
provided that is essential to the use or r eceipt
of a second service and the first service is
provided exclusively in connection with the
second service and the true object of the
transaction is the second service,
(3) a transaction that includes taxable products and
nontaxable products and the pu rchase price or
sales price of the taxable products is de
minimis. For purposes of this subdivision, "de
minimis" means the seller's purchase price or
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sales price of taxable products is ten percent
(10%) or less of the total purchase price or
sales price of the bundled products. Sellers
shall use either the purchase price or the sales
price of the products to determi ne if the taxable
products are de minimis. Sellers may not use a
combination of the purc hase price and sales p rice
of the products to determ ine if the taxable
products are de minimis. Sellers shall use the
full term of a service contract to determine if
the taxable products are de minimis, or
(4) the retail sale of exempt tangible personal
property and taxable ta ngible personal property
where:
(a) the transaction includes food and food
ingredients, drugs, durable medical
equipment, mobility enhancing equi pment,
over-the-counter drugs, prosthetic devices
or medical supplies, and
(b) the seller's purchase price or s ales price
of the taxable tangible personal property is
fifty percent (50%) or less of the total
purchase price or sales price of the bundled
tangible personal property. Sellers may not
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use a combination of the purchase price and
sales price of the tangib le personal
property when making the fifty percent (50%)
determination for a transaction;
2. 3. "Business" means any activity engaged in or caused to be
engaged in by any person with the object of gain, benefit, or
advantage, either direct or indirect;
3. 4. "Candy" means a preparation of sugar, honey, or other
natural or artificial sweeteners in combination with chocolate,
fruits, nuts, or other ingredients or flavorings in the form of
bars, drops, or pieces. Candy shall not includ e any preparation
containing flour or requiring refrigeration;
5. "Commission" or "Tax Commission" means the Oklahoma Tax
Commission;
4. 6. "Computer" means an electronic device that ac cepts
information in digital or similar form and manipulate s it for a
result based on a sequence of instructions;
5. 7. "Computer software" means a set of coded instructions
designed to cause a "computer" or automatic data processing
equipment to perform a task;
6. 8. "Consumer" or "user" means a person to whom a taxa ble
sale of tangible personal property is made or to who m a taxable
service is furnished. "Consumer" or "user" includes all contractors
to whom a taxable sale of materials, supplies, equipme nt, or other
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tangible personal prop erty is made or to whom a taxa ble service is
furnished to be used or consumed in the p erformance of any contract;
7. 9. "Contractor" means any person who performs any
improvement upon real property and who, as a necessar y and
incidental part of performing su ch improvement, incorporates
tangible personal property belonging to or purchased b y the person
into the real property being improved;
8. 10. "Dietary supplements" means any product, other than
tobacco, intended to su pplement the diet that:
a. contains one or more of the following diet ary
ingredients:
(1) a vitamin,
(2) a mineral,
(3) an herb or other botanical,
(4) an amino acid,
(5) a dietary substance to supplement the diet by
increasing the total dietary intake, or
(6) a concentrate, metabolite, constituent, extract,
or combination of any ingredient described in
divisions (1) through (5) of this subparagraph,
b. is intended for ingestion in tablet, capsule, powder,
softgel, gelcap, or liquid form, or, if not intende d
for ingestion in such form, is not represented as
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conventional food and is not represented for use as a
sole item of a meal or of the diet, and
c. is required to be labeled as a dietary supplement,
identifiable by the label and as required pursuant to
Section 101.36 of Title 21 of the Code of Federal
Regulations;
11. "Drug" means a compound, substance o r preparation, and any
component of a compound, substance or preparation:
a. recognized in the official United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of
the United States, or official National Formulary, a nd
supplement to any of them,
b. intended for use in the diagnosis, cure, mitigation,
treatment, or prevention of disease, or
c. intended to affect the structure or any function of
the body;
9. 12. "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, opti cal, electromagnetic,
or similar capabilities;
10. 13. "Established place of business" means the location at
which any person regularly engages in, c onducts, or operates a
business in a continuou s manner for any length of time, that is open
to the public during the hours customary to such business, in which
a stock of merchandise for resale is maintained, and which is not
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exempted by law from attachmen t, execution, or other species of
forced sale barring any satisfactio n of any delinquent tax liability
accrued under the Oklahoma Sales Tax Code;
11. 14. "Fair authority" means:
a. any county, municipality, school district, public
trust or any other polit ical subdivision of this
state, or
b. any not-for-profit corporation acting pursuant to an
agency, operating or ma nagement agreement which has
been approved or authorized by the governing body of
any of the entities specified in subparagraph a of
this paragraph which conduct, operate or produce a
fair commonly understood to be a county, district or
state fair;
15. "Food and food ingredients" means substances, whether in
liquid, concentrated, solid, frozen, dried , or dehydrated form, that
are sold for ingestion or chewing by humans and are consumed for
their taste or nutriti onal value. Food and food ingredients shall
include bottled water, candy, and soft drinks. Food and food
ingredients shall not include:
a. alcoholic beverages,
b. dietary supplements,
c. marijuana, usable marijuana , or marijuana-infused
products,
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d. prepared food, or
e. tobacco;
12.
16. a. "Gross receipts", "gross proceeds" or "sales price"
means the total amount of consideration, including
cash, credit, property and services, for which
personal property or services are sold, le ased or
rented, valued in money, whether received in money or
otherwise, without any deduction for the following:
(1) the seller's cost of the property sold,
(2) the cost of materials used, labor or service
cost,
(3) interest, losses, all costs of transpor tation to
the seller, all taxes imposed on the seller, and
any other expense of the seller,
(4) charges by the seller for any services necessary
to complete the sale, other th an delivery and
installation charges,
(5) delivery charges and installation charg es, unless
separately stated on the invoice, billing or
similar document given to the purchaser, and
(6) credit for any trade-in.
b. Such term shall not include:
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(1) discounts, including cash, term, or coupons that
are not reimbursed by a third party that are
allowed by a seller and taken by a purchaser on a
sale,
(2) interest, financing, and carrying charges from
credit extended on the sale of personal property
or services, if the amount is separately stated
on the invoice, bill of sale or similar document
given to the purchaser, an d
(3) any taxes legally imposed direc tly on the
consumer that are separately stated on the
invoice, bill of sale or similar document given
to the purchaser.
c. Such term shall include con sideration received by the
seller from third parties if:
(1) the seller actually receives consideration fr om a
party other than the purchaser and the
consideration is directly related to a price
reduction or discount on the sale,
(2) the seller has an obli gation to pass the price
reduction or discount through to the purchas er,
(3) the amount of the considerati on attributable to
the sale is fixed and determinable by the seller
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at the time of the sale of the item to the
purchaser, and
(4) one of the following criteria is met:
(a) the purchaser presen ts a coupon, certificate
or other documentation to the seller to
claim a price reduction or discount where
the coupon, certificate or documentation is
authorized, distributed or granted by a
third party with the un derstanding that the
third party will reim burse any seller to
whom the coupon, certificate or
documentation is presented,
(b) the purchaser identifies himself or herself
to the seller as a member of a group or
organization entitled to a price reduction
or discount; provided, a "preferred
customer" card that is available to any
patron does not constitute member ship in
such a group, or
(c) 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
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other documentation present ed by the
purchaser;
13.
17. a. "Maintaining a place of business in this state" means
and shall be presumed to include:
(1) (a) utilizing or maintainin g in this state,
directly or by subsidiary, an office,
distribution house, sales house, warehouse,
or other physical place of business, whether
owned or operated by the vendor or any other
person, other than a common carrier acting
in its capacity as such, or
(b) having agents operating in this state,
whether the place of business or a gent
is within this state temporarily or
permanently or whether the person or
agent is authorized to do business
within this state, and
(2) the presence of any person, other t han a common
carrier acting in its capacity as such, that has
substantial nexus in this state and that:
(a) sells a similar line of products as t he
vendor and does so under the same or a
similar business name,
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(b) uses trademarks, service marks or trade
names in this state that are the same
or substantially similar to those used
by the vendor,
(c) delivers, installs, assembles or
performs maintenance services for the
vendor,
(d) facilitates the vendor's delivery of
property to customers in the state by
allowing the vendor's customers to pick
up property sold by the vendor at an
office, distribution facility,
warehouse, storage place or similar
place of business maintained by the
person in this state, or
(e) conducts any other activities in this state
that are significantly associated with the
vendor's ability to establish and maintain a
market in this state fo r the vendor's sale.
b. The presumptions in divisions (1) and (2) of
subparagraph a of this paragraph may be rebutted by
demonstrating that the person 's activities in this
state are not significantly associated with the
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vendor's ability to establish and ma intain a market in
this state for the ven dor's sales.
c. Any ruling, agreement or contract, whether written or
oral, express or implied, between a perso n and
executive branch of this stat e, or any other state
agency or department, st ating, agreeing or ruli ng that
the person is not "maintaining a place of business in
this state" or is not required to collect sales and
use tax in this state despite the pres ence of a
warehouse, distribution c enter or fulfillment center
in this state that is owned or operated b y the vendor
or an affiliated person of t he vendor shall be null
and void unless it is specifically approved by a
majority vote of each house of the Okl ahoma
Legislature;
14. 18. "Manufacturing" means and includes the activity of
converting or conditioning tangible personal property by changing
the form, composition, or quality of character of some existing
material or materials , including natural resources, by procedures
commonly regarded by the average person as manufacturing,
compounding, processing or assembling, into a material or materials
with a different form or use. "Manufacturing" does not include
extractive industrial activities such as mining, qu arrying, logging,
and drilling for oil, gas and water, nor oil and gas field
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processes, such as natural pressure reduction, mechanical
separation, heating, cooling, dehydration and compression;
15. 19. "Manufacturing operation " means the designing,
manufacturing, compounding, processin g, assembling, warehousing, or
preparing of articles f or sale as tangible personal property. A
manufacturing operatio n begins at the point where the materials
enter the manufacturing site and ends a t the point where a finished
product leaves the manufactu ring site. "Manufacturing operation "
does not include administration, sales, distribution,
transportation, site const ruction, or site maintenance. Extractive
activities and field processes shall no t be deemed to be a part of a
manufacturing operation eve n when performed by a person otherwise
engaged in manufacturing;
16. 20. "Manufacturing site" means a location where a
manufacturing operation is conducted, including a location
consisting of one or mor e buildings or structures in a n area owned,
leased, or controlled by a manufacturer;
17. 21. "Over-the-counter drug" means a drug that contains a
label that identifies the p roduct as a drug as required by 21
C.F.R., Section 201.66. The over-the-counter-drug label includes:
a. a "Drug Facts" panel, or
b. a statement of the "active ingredient(s) " with a list
of those ingredients contained in the compound,
substance or preparat ion;
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18. 22. "Person" means any individual, company, partnership,
joint venture, joint ag reement, association, mutual o r otherwise,
limited liability company, corporation, estate, trust, business
trust, receiver or trustee appointed by any state or federa l court
or otherwise, syndicate, this state, any county, city, municipality,
school district, any other political subdiv ision of the state, or
any group or combination acting as a unit, in the plural o r singular
number;
23. "Prepared food" means:
a. food sold in a heated state or that is heated by the
seller,
b. two or more food ingredients mixed or com bined by the
seller for sale as a single item, or
c. food sold with eating utensils provided by the sell er,
including plates, knives, forks, spoons, glasses,
cups, napkins, or straws;
19. 24. "Prescription" means an order, formula o r recipe issued
in any form of oral, written, electronic, or other means of
transmission by a duly licensed "practitioner" as defined in Section
1357.6 of this title;
20. 25. "Prewritten computer software" means "computer
software", including prewritten upgra des, which is not designed and
developed by the author or other creator to the sp ecifications of a
specific purchaser. The combining of two or more prewritten
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computer software programs or prewritten portions thereof does not
cause the combination to be o ther than prewritten computer software.
Prewritten software includes software de signed 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 purchaser.
Where a person modifie s 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 such person 's modifications or
enhancements. Prewritten software or a prewritten portion thereof
that is modified or enhanced to any degree, where such modification
or enhancement is designed and developed to the specific ations of a
specific purchaser, remains prewritten software; pro vided, however,
that where there is a reasonable, separately stated charge or an
invoice or other statement of the price given to the p urchaser for
such modification or enhancement, such modif ication or enhancement
shall not constitute prewritten computer software;
21. 26. "Repairman" means any person who performs any repair
service upon tangible personal property of the consumer, whethe r or
not the repairman, as a ne cessary and incidental part of performing
the service, incorporates tangible personal prop erty belonging to or
purchased by the repairman into the tangible personal property b eing
repaired;
22. 27. "Sale" means the transfer of either title or possession
of tangible personal property for a valuable consideration
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regardless of the manner, method , instrumentality, or device by
which the transfer is accomplished in this state, or othe r
transactions as provided by this paragraph, including but not
limited to:
a. the exchange, barter, lease, or rental of tangible
personal property resulting in the tr ansfer of the
title to or possession of the property,
b. the disposition for consumption or use in any business
or by any person of all goods, wares, merchandise, or
property which has been purchased for resale,
manufacturing, or further processing,
c. the sale, gift, exchange, or other disposition of
admission, dues, or fees to clubs, places of
amusement, or recreational or athletic even ts or for
the privilege of having a ccess to or the use of
amusement, recreational, athletic or entertainment
facilities,
d. the furnishing or rendering of services taxable under
the Oklahoma Sales Tax Code, and
e. any use of motor fuel or diesel fuel by a supplier, as
defined in Section 500 .3 of this title, upon which
sales tax has not previously been paid, for purposes
other than to propel motor vehicles over the public
highways of this state. Motor fuel or di esel fuel
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purchased outside the state and used for purposes
other than to propel motor vehicles over the public
highways of this state shall not constitute a sale
within the meaning of this paragraph;
23. 28. "Sale for resale" means:
a. a sale of tangible per sonal property to any purchaser
who is purchasing tangible personal property for the
purpose of reselling it wi thin the geographical limits
of the United States of America or its territories or
possessions, in the normal course of business either
in the form or condition in which it is purchased o r
as an attachment to or integral part of other tangible
personal property,
b. a sale of tangible personal property to a purchaser
for the sole purpose of the renting or leasing, within
the geographical limits of t he United States of
America or its territo ries or possessions, of the
tangible personal property to another per son by the
purchaser, but not if incidental to the r enting or
leasing of real estate,
c. a sale of tangible goods and products within this
state if, simultaneously with the sale, the vend or
issues an export bill of lading, or other
documentation that the p oint of delivery of such goods
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for use and consumpti on is in a foreign country and
not within the territorial confines of the United
States. If the vendor is not in the business of
shipping the tangible goods and products tha t are
purchased from the vendo r, the buyer or purchaser of
the tangible goods and products is responsible for
providing an export bill of lading or other
documentation to the vendor from whom the tangible
goods and products were purchased showing that the
point of delivery of such good s for use and
consumption is a foreign country and n ot within the
territorial confines of the United States, or
d. a sales of any carrier access services, right of
access services, teleco mmunications services to be
resold, or telecommunications used in the subsequent
provision of, use as a component part of , or
integrated into, end-to-end telecommunications
service;
29. "Soft drinks" means any nonalcoholic beverages that co ntain
natural or artificial sweeteners. Soft drinks shall not include
beverages that contain:
a. milk or milk products,
b. soy, rice, oat, or similar milk substitutes, or
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c. greater than fifty percent (50%) of vegetable or fruit
juice by volume;
24. 30. "Tangible personal property" means personal property
that can be seen, weighed, meas ured, felt, or touched o r that is in
any other manner perceptible to the senses. "Tangible personal
property" includes electricity, wa ter, gas, steam and prewritten
computer software. T his definition shall be applicable only for
purposes of the Oklahoma Sales Tax Code;
25. 31. "Taxpayer" means any person liable to pay a tax imposed
by the Oklahoma Sales Tax Code;
26. 32. "Tax period" or "taxable period" means the calendar
period or the taxpayer's fiscal period for which a taxpayer has
obtained a permit from the Tax Commission to use a fiscal period in
lieu of a calendar period;
27. 33. "Tax remitter" means any person required to collect,
report, or remit the tax imposed by the Oklahoma Sales Tax Code. A
tax remitter who fails, for any reason, to collec t, report, or remit
the tax shall be considered a taxpayer for purposes of assessment,
collection, and enforcement of the tax imposed by the Oklaho ma Sales
Tax Code; and
28. 34. "Vendor" means:
a. any person making sales of tangible personal property
or services in this state, the gross receipt s or gross
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proceeds from which are taxed by the Oklahoma Sales
Tax Code,
b. any person maintaining a place of b usiness in this
state and making sal es of tangible personal prop erty
or services, whether at the place of business or
elsewhere, to persons withi n this state, the gross
receipts or gross proceeds from which are taxed by the
Oklahoma Sales Tax Code,
c. any person who solicits business by empl oyees,
independent contracto rs, agents, or other
representatives in t his state, and thereby makes sales
to persons within this state of tangible personal
property or services, the gross receipts or gross
proceeds from which are taxed by the Oklahoma Sales
Tax Code, or
d. any person, pursuant to an agreement with the person
with an ownership interest in or title t o tangible
personal property, who has been entrusted with the
possession of any such property and has the power to
designate who is to obtain title , to physically
transfer possession of, or otherwise make sales of th e
property.
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SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1357.11 of Title 68, unless
there is created a dupli cation in numbering, reads as follow s:
A. 1. On or after the effective date of this act, an excise
tax of zero percent (0%) is hereby imposed upon all retail sales of
food and food ingredients sold for human consumption off the
premises where sold.
2. Any sales tax or excise tax levied by a city, town, county,
or any other jurisdiction in this state upon sales of food and food
ingredients shall be in effect regardless of ordinance or
contractual provisions referring to previously imposed state sales
tax on the items.
3. On or after the effective date of this act, until June 30,
2025, a county or a municipality that submits the question of a
sales tax or excise tax to its voters shall provide that the
increased rate does not apply to "food and food ingredients" as that
term is defined in Section 1352 of Title 68 of the Oklahoma
Statutes.
B. The Oklahoma Tax Commission shall promulgate any necessary
rules to implement the provisions of this section in accordance with
the Streamlined Sales and Use Tax Agreement.
SECTION 3. This act shall become effective July 1, 2023.
SECTION 4. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
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declared to exist, by reason whereof thi s act shall take effect and
be in full force from and after its passage and approval.
Passed the House of Representatives the 21st day of March, 2023.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2023.
Presiding Officer of the Senate