Tennessee § 67-6-204 - Lease or rental of property.

§ 67-6-204. Lease or rental of property.

It is declared to be the intention of this chapter to impose a tax on the sales price of all leases and rentals of tangible personal property and computer software in this state where the lease or rental is a part of the regularly established business, or the lease or rental is incidental or germane to the regularly established business. The tax is levied as follows: At the rate of the tax levied on the sale of tangible personal property at retail by § 67-6-202 of the sales price derived from the lease or rental of tangible personal property, as defined herein, where the lease or rental of such property is an established business, or part of an established business, or the same is incidental or germane to the business. At the rate of the tax levied on the sale of tangible personal property at retail by § 67-6-202 of the monthly lease or rental price by lessee or renter, or contracted or agreed to be paid by lessee or renter, to the owner of the tangible personal property. The lessee or renter of tangible personal property from a lessor that is a tax exempt entity may elect, in lieu of the tax imposed by this section on the monthly lease or rental price contracted or agreed to be paid by the lessee or renter to the tax exempt owner of the tangible personal property, to pay in a lump sum a use tax at the rate of the tax levied on the sale of tangible personal property at retail by § 67-6-202 of the purchase price to the lessor of the tangible personal property subject to the lease. The election shall be made by the lessee in accordance with rules and regulations to be promulgated by the commissioner of revenue. An election may be revoked with the consent of the commissioner. The effect of payment by a lessee of a use tax based on the purchase price to the lessor of the tangible personal property, pursuant to an election made as provided in this section, shall be to relieve and discharge the lessee and its successors and assigns of any obligation of paying any tax on the monthly lease or rental price contracted or agreed to be paid by the lessee or its successors and assigns to the lessor with respect to the tangible personal property that is the subject of the lease during the term of the lease and any extensions and renewals thereof, and of any obligation to pay any sales or use tax with respect to the purchase by lessee from the lessor of the tangible personal property pursuant to a purchase option contained in the lease of the tangible personal property. This subsection (b) also applies to permit a lump sum payment of a local option use tax under part 7 of this chapter, based upon the purchase price to the lessor, at the rate and subject to the limitation on the tax applicable in the particular municipality or county pursuant to § 67-6-702. The lump sum payment is in lieu of any local option tax imposed under part 7 of this chapter on the monthly lease or rental of tangible personal property from a lessor that is a tax exempt entity. Notwithstanding any other provision of law to the contrary, the one-half percent (0.5%) increase in the rate of the sales tax from five and one-half percent (5.5%) to six percent (6%) imposed by chapter 529 of the Public Acts of 1992 in this section and §§ 67-6-202, 67-6-203, 67-6-205, and 67-6-221 shall remain in effect until changed by the general assembly. All revenue generated from such increases shall be deposited in the state general fund and earmarked for education purposes as provided in § 67-6-103(c)(2). Acts 1947, ch. 3, §§ 3, 8; C. Supp. 1950, §§ 1248.52, 1248.64 (Williams, §§ 1328.24, 1328.30); Acts 1955, ch. 51, §§ 7, 8, 12; 1955, ch. 242, § 6; 1959, ch. 15, § 2; 1963, ch. 38, §§ 3, 5; 1963, ch. 172, § 3; 1965, ch. 335, § 2; 1971, ch. 78, § 1; 1971, ch. 117, § 2; 1972, ch. 653, § 1; 1973, ch. 239, § 1; 1974, ch. 675, § 1; 1975, ch. 316, § 1; 1976, ch. 466, §§ 1, 3; 1982, ch. 610, § 1; 1982, ch. 646, § 1; 1983, ch. 378, § 1; 1983, ch. 402, § 1; T.C.A. (orig. ed.), §§ 67-3003(c), (d), 67-3024; Acts 1984 (Ex. Sess.), ch. 8, § 3; 1984, ch. 994, § 1; 1985, ch. 356, § 4; 1986, ch. 560, § 1; 1992, ch. 529, § 3; 1993, ch. 190, §§ 1, 2; 1996, ch. 664, § 1; 2002, ch. 856, § 4d; 2003, ch. 357, §§ 4, 23; 2004, ch. 959, § 68; 2005, ch. 311, § 1; 2007, ch. 602, §§ 51, 71-73; 2008, ch. 1106, § 4. Compiler's Notes. Acts 2002, ch. 856, § 4(f) provided that, notwithstanding the provisions of § 67-6-103(a)(3) or any other law to the contrary, all increased revenues attributable to the amendments to title 67, chapter 6 set forth in § 4(a)-(e) of that act shall be paid into the state's general fund and shall be allocated exclusively for general state purposes. Acts 2002, ch. 856 § 4(g) provided that, notwithstanding the provisions § 4 of that act to the contrary, sales to or use by a contractor, subcontractor, or material vendor of tangible personal property, including rentals thereof and labor or services performed in the fabrication, manufacture, delivery, or installation of such tangible personal property when such property is sold or used solely in performance of a lump sum or unit price construction contract entered into prior to July 15, 2002, or awarded by the state or a political subdivision pursuant to a bid opening which occurred prior to July 15, 2002, shall be subject to tax at the state rate of six percent (6%) plus the local option sales tax rate in effect or operative on July 1, 2002, in the county or municipality in which the property is sold or used. In addition, sales to or use by a subcontractor of tangible personal property, including rentals thereof and labor or services performed in the fabrication, manufacture, delivery, or installation of such tangible personal property when such property is sold or used solely in performance of a written subcontract entered into prior to September 1, 2002, if such subcontract is made pursuant to a general contract qualifying for the reduced rate of tax as set out above, shall be subject to tax at the rate of six percent (6%) plus the local option sales tax rate in effect or operative on July 1, 2002, in the county or municipality in which the property is sold or used. Any vendor making such sales to any such contractor or subcontractor shall collect tax at the rate and in the amounts established by this act. Any such contractor or subcontractor may then file a claim with the commissioner of revenue for a refund of any such tax paid to any of the contractor's vendors at a rate in excess of six percent (6%) plus the local option sales tax rate in effect or operative on July 1, 2002, in the county or municipality in which the property is sold or used. For purposes of this subsection (g) the term “lump sum or unit price construction contract” means a written contract for the construction of improvements to real property under which the amount payable to the contractor, subcontractor or material vendor is fixed without regard to the costs incurred in the performance of the contract. The provisions of this paragraph shall not be construed to increase the rate of tax imposed pursuant to the provisions of § 67-6-206 . Acts 2002, ch. 856, § 13 provided that no expenditure of public funds pursuant to that act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000 d. Acts 2007, ch. 602, § 51 provided that Acts 2003, ch. 357, §§ 4, 23, as amended by Acts 2004, ch. 959, § 68, as amended by Acts 2005, ch. 311, § 1, are repealed in their entirety, effective June 28, 2007. Textbooks. Tennessee Jurisprudence, 23 Tenn. Juris., Taxation, § 74. Law Reviews. Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).