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STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
HOUSE BILL 2086 By: Echols
AS INTRODUCED
An Act relating to revenue and taxation; amending 68
O.S. 2021, Section 1352, whi ch relates to
definitions; defining terms; exempting from sales tax
the sale of food and food ingredients; limiting
duration of exempt treatment; providing for effect of
exemption on sales or excise tax levied by local
taxing jurisdictions ; authorizing Oklahoma Tax
Commission to promulgate rul es; providing for
codification; 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 fol lows:
Section 1352. 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 sale of two or more
products, except real property and services to real property, where
the products are otherwise distinct and identi fiable, and the
products are sold for o ne nonitemized price. A "bundled
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transaction" does not include the sale of any products in which the
sales price varies, or is negotiable, based on the selection by the
purchaser of the products included in the trans action. As used in
this paragraph:
a. "distinct and identifiable products " does not include:
(1) packaging such as con tainers, 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 not limited to, g rocery
sacks, shoeboxes, dry cleaning garment bags and
express delivery envelopes and boxes,
(2) a product provided free of charge with t he
required purchase of another product . A product
is provided free of charge if the sales price of
the product purchased does 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 that
is separately identified by product on binding sales
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or other supporting sales-related documentation made
available to the customer in paper or electro nic form
including, but not limited to , an invoice, bill of
sale, receipt, contract, service agreement, lease
agreement, periodic notice of rates and services, rate
card, or price list,
A transaction that otherwise meets the definition of a bundled
transaction shall not be considered a bundled t ransaction if it is:
(1) the retail sale of tangible personal property and
a service where the tangible personal property is
essential to the use of the service, and is
provided exclusively in connection with the
service, and the true object of the transac tion
is the service,
(2) the retail sale of services where one service is
provided that is essential to the use or receipt
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 product s and
nontaxable products and the purchase price or
sales price of the taxable products is de
minimis. For purposes of this subdivision
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division, "de minimis" means the seller's
purchase price or sales price of taxable products
is ten percent (10%) or les s 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 produ cts to
determine if the taxable product s are de minimis.
Sellers may not use a combination of the purchase
price and sales price of the products to
determine 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 tangible personal property
where:
(a) the transaction includes food and food
ingredients, drugs, durable medical
equipment, mobility enhancing equipment,
over-the-counter drugs, prosthetic devices
or medical supplies, and
(b) the seller's purchase price or sales price
of the taxable tangible personal property is
fifty percent (50%) or l ess of the total
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purchase price or sales price of t he bundled
tangible personal property. Sellers may not
use a combination of the purchase price and
sales price of the tangible personal
property when making the fifty percent (50%)
determination for a tra nsaction;
2. 3. "Business" means any activity enga ged 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 include any prep aration
containing flour or requiring refrigeration;
5. "Commission" or "Tax Commission" means the Oklahoma Tax
Commission;
4. 6. "Computer" means an electronic device that accepts
information in digital or similar form and manipulates it for a
result based on a sequence of instructions;
5. 7. "Computer software" means a set of coded instructi ons
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 taxable
sale of tangible personal property is made or to whom a taxable
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service is furnished. "Consumer" or "user" includes all contractors
to whom a taxable sale of materials, supplies, equipment, or other
tangible personal property is made or to whom a taxable service is
furnished to be used or consumed in the performance of any contract;
7. 9. "Contractor" means any person who performs any
improvement upon real property and who, as a necessary and
incidental part of performing such improvement, incorporates
tangible personal property belonging to or purchased by the person
into the real property being improved ;
8. 10. "Dietary supplements" means any product, other than
tobacco, intended to supplement the diet that:
a. contains one or more of the following dietary
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 ing redient described in
divisions (1) through (5) of this subparagraph,
b. is intended for inge stion in tablet, capsule, powder,
softgel, gelcap, or liquid form, or, if not intended
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for ingestion in such form, is not represented as
conventional food and is no t represented for use as a
sole item of a meal or of the diet, and
c. is required to be labe led 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 or preparation, and any
component of a compound, substance or preparat ion:
a. recognized in the official United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of
the United States, or official National Formulary, and
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 stru cture or any function of
the body;
9. 12. "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities;
10. 13. "Established place of business" means the location at
which any person regularly engages in, conducts, or operates a
business in a continuous manner for any length of time, that is open
to the public during the hours customary to such business, in which
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a stock of merchandise for resale is maintained, and which is not
exempted by law from attachment, execution, or other species of
forced sale barring any satisfaction of any d elinquent 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 political subdivision of this
state, or
b. any not-for-profit corporation acting pur suant to an
agency, operating or management 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 coun ty, district or
state fair;
12. 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 nutritional va lue. 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,
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c. marijuana, usable marijuana , or marijuana-infused
products,
d. prepared food, or
e. tobacco;
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, leased or
rented, valued in money, wheth er 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 transportation to
the seller, all taxes impose d on the seller, and
any other expense of the seller,
(4) charges by the seller for any se rvices necessary
to complete the sale, other than delive ry and
installation charges,
(5) delivery charges and installation charges, unless
separately stated on the in voice, 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 amou nt is separately stated
on the invoice, bill of sale or similar document
given to the purchaser, and
(3) any taxes legally imposed directly 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 consideration received by the
seller from third parties if:
(1) the seller actually receives consideration from a
party other than the purchaser and the
consideration is dir ectly related to a price
reduction or discount on the sa le,
(2) the seller has an obligation to pass the price
reduction or discount through to the purchaser,
(3) the amount of the consideration attributable to
the sale is fixed and determinable by the sel ler
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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 presents a coupon, certificate
or other documentation to the seller to
claim a price reduction or discount where
the coupon, certifica te or documentation is
authorized, distributed or grante d 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 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 membership 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 presented 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 maintaining 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 agent
is within this state tempora rily or
permanently or whether the person or
agent is authorized to do business
within this state, and
(2) the presence of any person, other than 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 the
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 for the vend or's sale.
b. The presumptions in divisions (1) and (2) of
subparagraph a of this paragrap h 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 maintain a m arket in
this state for the vendor's sales.
c. Any ruling, agreement or contract, whether written or
oral, express or implied, between a person an d
executive branch of this state, or any other state
agency or department, stating, agreeing or ruling that
the person is not "maintaining a place of business in
this state" or is not required to coll ect sales and
use tax in this state despite the presence of a
warehouse, distribution center or fulfillment center
in this state that is owned or operated by the vend or
or an affiliated person of the vendor shall be null
and void unless it is specifically approved by a
majority vote of each house of the Oklahom a
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 exis ting
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 pressu re reduction, mechanical
separation, heating, cooling, dehydration and compression;
15. 19. "Manufacturing operation" means the designing,
manufacturing, compounding, processing, assembling, warehousing, or
preparing of articles for sale as tangible perso nal property. A
manufacturing operation begins at the point where the materials
enter the manufacturing site and ends at the point where a finish ed
product leaves the manufacturing site. "Manufacturing operation "
does not include administration, sales, d istribution,
transportation, site construction, or site maintenance. Extractive
activities and field processes shall not be deemed to be a part o f a
manufacturing operation even 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 more buildings or structu res in an area owned,
leased, or controlled by a manufacturer;
17. 21. "Over-the-counter drug" means a drug that contains a
label that identifies the product 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 contai ned in the compound,
substance or preparation;
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18. 22. "Person" means any individual, com pany, partnership,
joint venture, joint agreement, assoc iation, mutual or otherwise,
limited liability company, corporation, estate, trust, business
trust, receiver or trustee appointed by any state or federal court
or otherwise, syndicate, this state, any county, city, municipality,
school district, any other political subdivision of the state, or
any group or combination acting as a unit, in the plural or singular
number;
19. 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 seller,
including plates, knives, forks, spoons, glasses,
cups, napkins, or straws;
24. "Prescription" means an order, formula or 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 upgrades, which is not desig ned and
developed by the author or other creator to the specifications 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 other than prewritten co mputer software.
Prewritten software includes 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 p urchaser.
Where 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 crea tor only of such person's modifications or
enhancements. Prewritten software or a prewrit ten portion thereof
that is modified or enhanced to any degree, where such modification
or enhancement is designed and developed to the specifications of a
specific purchaser, remains prewritten software; provided, however,
that where there is a reasonable , separately stated charge or an
invoice or other statem ent of the price given to the purchaser for
such modification or enhancement, such modification or enhancement
shall not constitute prewritten computer software;
21. 26. "Repairman" means any person who performs any repair
service upon tangible personal p roperty of the consumer, whether or
not the repairman, as a necessary and incidental part of performing
the service, incorporates tangible personal property belonging to or
purchased by the repairman into the tangible personal property being
repaired;
22. 27. "Sale" means the transfer of either title or possession
of tangible personal property for a valuable cons ideration
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regardless of the manner, method, instrumentality, or device by
which the transfer is accomplished in this state, or other
transactions as provided by this paragraph, including but not
limited to:
a. the exchange, barter, lease, or rental of tang ible
personal property resulting in the transfer of the
title to or possession of the prop erty,
b. the disposition for consumption or use in any b usiness
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 events or for
the privilege of having access to or the use of
amusement, recreation al, athletic or entertainment
facilities,
d. the furnishing or rendering of services taxab le 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 diesel 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 personal prope rty to any purchaser
who is purchasing tangible personal property for the
purpose of reselling it within the g eographical limits
of the United States of America or its territories or
possessions, in the normal course of business either
in the form or condi tion in which it is purchased or
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 the United S tates of
America or its territories or possessions, of the
tangible personal property to another person by the
purchaser, but not if incidental to the renting or
leasing of real estate,
c. a sale of tangible goods and products within this
state if, simultaneously with the sale, the vendor
issues an export bill of lading, or other
documentation that the point of de livery of such goods
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for use and consumption 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 that are
purchased from the vendor, the buy er 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 goods for use and
consumption is a foreign country and not within the
territorial confines of the United States, or
d. a sales of any carrier access services, r ight of
access services, telecommunications services to be
resold, or telecommunications used in the subsequen t
provision of, use as a component part of, or
integrated into, end-to-end telecommunications
service;
24. 29. "Soft drinks" means any nonalcoholic beverages that
contain natural or artificial sweeteners. Soft drinks shall not
include beverages that cont ain:
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;
30. "Tangible personal property " means personal property that
can be seen, weighed, measured, felt , or touched or that is in any
other manner perceptible to the senses. "Tangible personal
property" includes electricity, water, gas, steam and p rewritten
computer software. This 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 T ax 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 collect, report, or remit
the tax shall be considered a taxpayer for purposes of assessment,
collection, and enforcement of the tax imposed by the Oklahoma Sales
Tax Code;
34. "Tobacco" means cigarettes, cigars, chewing or pipe
tobacco, or any other item that contains to bacco; and
28. 35. "Vendor" means:
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a. any person making sales of tangible personal proper ty
or services in this state, the gross receipts or gros s
proceeds from which are taxed by the Oklahoma Sales
Tax Code,
b. any person maintaining a place of business in this
state and making sales of tangible personal property
or services, whether at the p lace of business or
elsewhere, to persons within this st ate, the gross
receipts or gross proceeds from which are taxed by the
Oklahoma Sales Tax Code,
c. any person who solicits business by employees,
independent contractors, agents, or other
representatives in this 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 to tangibl e
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 sale s of the
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 duplication in numbering, reads as follows:
A. 1. On or after the effective date of this act until the
period ending June 30, 2027, 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 levie d by a city, town, county,
or any other jurisdiction in this state upon sales of food and food
ingredients shall be in effect regar dless of ordinance or
contractual provisions referring to previously imposed state sales
tax on the items.
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 i s hereby
declared to exist, by reason whereof t his act shall take effect and
be in full force from and after its passage and approval.
59-1-6060 MAH 01/08/23