HR 5793
110th CONGRESS
2d Session
H. R. 5793
To restrict any State or local jurisdiction from imposing a new discriminatory
tax on cell phone services, providers, or property.
IN THE HOUSE OF REPRESENTATIVES
April 15, 2008
Ms. ZOE LOFGREN of California (for herself, Mr. CANNON, Mr. COHEN, Mr. CHABOT,
Mr. MEEKS of New York, and Mr. SENSENBRENNER) introduced the following bill;
which was referred to the Committee on the Judiciary
A BILL
To restrict any State or local jurisdiction from imposing a new discriminatory
tax on cell phone services, providers, or property.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Cell Tax Fairness Act of 2008'.
SEC. 2. MORATORIUM.
(a) In General- No State or local jurisdiction shall impose a new discriminatory
tax on or with respect to mobile services, mobile service providers, or mobile
service property, during the 5-year period beginning on the date of enactment
of this Act.
(b) Definitions- In this Act:
(1) MOBILE SERVICE- The term `mobile service' means commercial mobile radio
service, as such term is defined in section 20.3 of title 47, Code of Federal
Regulations, as in effect on the date of enactment of this Act, or any other
service that is primarily intended for receipt on, transmission from, or
use with a mobile telephone, including but not limited to the receipt of
a digital good.
(2) MOBILE SERVICE PROPERTY- The term `mobile service property' means all
property used by a mobile service provider in connection with its business
of providing mobile services, whether real, personal, tangible, or intangible
and includes, but is not limited to goodwill, licenses, customer lists,
and other similar intangible property associated with such business.
(3) MOBILE SERVICE PROVIDER- The term `mobile service provider' means any
entity that sells or provides mobile services, but only to the extent that
such entity sells or provides mobile services.
(4) NEW DISCRIMINATORY TAX- The term `new discriminatory tax' means any
tax imposed by a State or local jurisdiction that--
(A) is imposed on or with respect to, or is measured by the charges, receipts,
or revenues from or value of--
(i) any mobile service and is not generally imposed, or is generally
imposed at a lower rate, on or with respect to, or measured by the charges,
receipts or revenues from, other services or transactions involving
tangible personal property;
(ii) any mobile service provider and is not generally imposed, or is
generally imposed at a lower rate, on other persons that are engaged
in businesses other than the provision of mobile services; or
(iii) any mobile service property and is not generally imposed, or is
generally imposed at a lower rate, on or with respect to, or measured
by the value of, other property that is devoted to a commercial or industrial
use and subject to a property tax levy, except public utility property
owned by a public utility subject to rate of return regulation by a
State or Federal regulatory authority; and
(B) was not generally imposed and actually enforced on mobile services,
mobile service providers, or mobile service property prior to the date
of enactment of this Act.
(5) STATE OR LOCAL JURISDICTION- The term `State or local jurisdiction'
means any of the several States, the District of Columbia, any territory
or possession of the United States, a political subdivision of any State,
territory, or possession, or any governmental entity or person acting on
behalf of such State, territory, possession, or subdivision and with the
authority to assess, impose, levy, or collect taxes or fees.
(A) IN GENERAL- The term `tax' means any charge imposed by any governmental
entity for the purpose of generating revenues for governmental purposes,
and is not a fee imposed on an individual entity or class of entities
for a specific privilege, service, or benefit conferred exclusively on
such entity or class of entities.
(B) EXCLUSION- The term `tax' does not include any fee or charge--
(i) used to preserve and advance Federal universal service or similar
State programs authorized by section 254 of the Communications Act of
1934 (47 U.S.C. 254); or
(ii) specifically dedicated by a State or local jurisdiction for the
support of E-911 communications systems.
(c) Rules of Construction-
(1) DETERMINATION- For purposes of subsection (b)(4), all taxes, tax rates,
exemptions, deductions, credits, incentives, exclusions, and other similar
factors shall be taken into account in determining whether a tax is a new
discriminatory tax.
(2) APPLICATION OF PRINCIPLES- Except as otherwise provided in this Act,
in determining whether a tax on mobile service property is a new discriminatory
tax for purposes of subsection (b)(4)(A)(iii), principles similar to those
set forth in section 306 of the Railroad Revitalization and Regulatory Reform
Act of 1976 (49 U.S.C. 11501) shall apply.
(3) EXCLUSIONS- Notwithstanding any other provision of this Act--
(A) the term `generally imposed' as used in subsection (b)(4) shall not
apply to any tax imposed only on--
(ii) specific industries or business segments; or
(iii) specific types of property; and
(B) the term `new discriminatory tax' shall not include a new tax or the
modification of an existing tax that--
(i) replaces one or more taxes that had been imposed on mobile services,
mobile service providers, or mobile service property; and
(ii) is designed so that, based on information available at the time
of the enactment of such new tax or such modification, the amount of
tax revenues generated thereby with respect to such mobile services,
mobile service providers, or mobile service property is reasonably expected
to not exceed the amount of tax revenues that would have been generated
by the respective replaced tax or taxes with respect to such mobile
services, mobile service providers, or mobile service property.
SEC. 3. ENFORCEMENT.
(a) Burden of Proof- The burden of proof in any proceeding brought under this
Act shall be upon the party seeking relief and shall be by a preponderance
of the evidence on all issues of fact.
(b) Relief- In granting relief against a tax which is discriminatory or excessive
under this Act with respect to tax rate or amount only, the court shall prevent,
restrain, or terminate the imposition, levy, or collection of no more than
the discriminatory or excessive portion of the tax as determined by the court.
END
