SB837.DOC

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to title 14 to be appropriately designated and to read as follows:

"CHAPTER

SUGAR-SWEETENED BEVERAGES FEE

§ -1 Title. This chapter may be cited as the Sugar-Sweetened Beverages Fee Act.

§ -2 Definitions. For the purposes of this chapter:

"Bottle" means any closed or sealed container regardless of size or shape, including those made of glass, metal, paper, or plastic or any other material or combination of materials.

"Bottled sugar-sweetened beverage" means any sugar-sweetened beverage contained in a bottle that is ready for consumption without further processing such as, without limitation, dilution or carbonation.

"Caloric sweetener" means any caloric substance suitable for human consumption that humans perceive as sweet and includes sucrose, fructose, glucose, other sugars, and fruit juice concentrates, but does not include non-caloric sweeteners. For purposes of this definition, "caloric" means a substance that adds calories to the diet of a person who consumes that substance.

"Consumer" means a person who purchases a sugar-sweetened beverage for consumption and not for sale to another.

"Department" means the department of taxation.

"Director" means the director of taxation.

"Distributor" means any person, including a manufacturer or wholesale dealer, who receives, stores, manufactures, bottles, or distributes bottled sugar-sweetened beverages, syrup, or powder, for sale to retailers doing business in the State regardless of whether that person also sells such products to consumers.

"Non-caloric sweetener" means any non-caloric substance suitable for human consumption that humans perceive as sweet and includes aspartame, saccharin, stevia, and sucralose, but does not include caloric sweeteners. For purposes of this definition, "non-caloric" means a substance that does not add calories to the diet of a person who consumes that substance.

"Person" means any natural person, partnership, cooperative association, limited liability company, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Place of business" means any place where sugar-sweetened beverages, syrups, or powders are manufactured or received for sale in the State.

"Powder" means any solid mixture of ingredients used in making, mixing, or compounding sugar-sweetened beverages by mixing the powder with one or more other ingredients, including water, ice, syrup, simple syrup, fruits, vegetables, fruit juice, vegetable juice, carbonation, or other gas.

"Retailer" means any person who sells or otherwise dispenses in the State a sugar-sweetened beverage to a consumer regardless of whether that person is also a distributor as defined in this section.

"Sale" means the transfer of title or possession for valuable consideration regardless of the manner by which the transfer is completed.

"Sugar-sweetened beverage" means any beverage that contains any added caloric sweetener and contains twenty-four or more calories per twelve ounces. "Sugar-sweetened beverage" shall not include:

(1) Infant formula;

(2) Beverages in which milk is the primary ingredient. For the purposes of this paragraph, "milk" means natural liquid milk regardless of animal source or butterfat content; natural milk concentrate, whether or not reconstituted, regardless of animal source or butterfat content; dehydrated natural milk, whether or not reconstituted and regardless of animal source or butterfat content; soy milk; or rice milk;

(3) Beverages or liquids sold for use for weight reduction as a meal replacement;

(4) Dietary aids. For the purposes of this paragraph, "dietary aid" means liquid products manufactured for use as:

(A) An oral nutritional therapy for persons who cannot absorb or metabolize dietary nutrients from food or beverages;

(B) A source of necessary nutrition used due to a medical condition; or

(5) Beverages consisting of one hundred per cent natural fruit or vegetable juice with no added caloric sweetener. For purposes of this paragraph, "natural fruit juice" and "natural vegetable juice" mean the original liquid resulting from the pressing of fruits or vegetables, or the liquid resulting from the dilution of dehydrated natural fruit juice or natural vegetable juice; or

(6) Alcoholic beverages.

"Syrup" means a liquid mixture of ingredients used in making, mixing, or compounding sugar-sweetened beverages using one or more other ingredients including water, ice, a powder, simple syrup, fruits, vegetables, fruit juice, vegetable juice, carbonation, or other gas.

§ -3 Fee imposed. (a) Every distributor selling sugar-sweetened beverages, syrup, or powder in this State shall pay a fee that is hereby imposed at the rate of 1 cent per fluid ounce of bottled sugar-sweetened beverages or the equivalent amount of concentrate, syrup, or powder sold or offered for sale to a retailer for sale in the State to a consumer.

(b) Any retailer that sells bottled sugar-sweetened beverages, syrup, or powder in the State to a consumer, on which the fees imposed by this section have not been paid by a distributor, shall be liable for the fees imposed in subsection (a) at the time of sale to the consumer.

§ -4 Return; form; contents. Every taxpayer, on or before the twentieth day of each month, shall file with the department in the taxation district in which the taxpayer's place of business is located, a return showing all sales of sugar-sweetened beverages, syrup, and powder by amount and dollar volume in each category defined in section -2 and fees paid under section -3 by the taxpayer during the preceding month, showing separately the amount of the non-fee sales, and the amount of the fee sales, and the fees payable thereon. The form of the return shall be prescribed by the department and shall contain such information as it may deem necessary for the proper administration of this chapter.

§ -5 Payment of fees; penalties. At the time of the filing of the return required under section -4 and within the time prescribed therefor, each taxpayer shall pay to the department the fees imposed by this chapter, required to be shown by the return.

Penalties and interest shall be added to and become a part of the fees, when and as provided by section 231-39.

§ -6 Determination of fees, additional assessments, credit, and refunds. (a) As soon as practicable after each return has been filed, the department shall cause it to be examined and shall compute and determine the amount of the fees payable thereon.

(b) If it appears upon the initial examination of the return, within two years after the filing of the return, or at any time if no return has been filed, as a result of the examination or as a result of any examination of the records of the taxpayer or of any other inquiry or investigation, that the correct amount of the fees is greater than that shown on the return, or that any fee imposed by this chapter has not been paid, an assessment of additional fees may be made in the manner provided in section 235-108(b). The amount of the fees for the period covered by the assessment shall not be reduced below the amount determined by an assessment so made, except upon appeal or in a proceeding brought pursuant to section 40-35.

(c) If the taxpayer has paid or returned with respect to any month more than the amount determined to be the correct amount of fees for that month, the amount of the fees so returned and any assessment of fees made pursuant to the return may be reduced, and any overpayment of fees may be credited upon the fees imposed by this chapter, or at the election of the taxpayer, the taxpayer not being delinquent in the payment of any taxes owing to the State, may be refunded in the manner provided in section 231-23(c); provided that no reduction of fees may be made when forbidden by subsection (b) or more than two years after the filing of the return.

§ -7 Records to be kept. (a) Every taxpayer shall keep a record of all sales of sugar-sweetened beverages by amount and dollar volume in each category defined in section -2 and fees paid under section -3 made by the taxpayer, in such form as the department may prescribe. These records shall be offered for inspection and examination at any time upon demand by the department and shall be preserved for a period of two years, except that the department may consent in writing to their destruction within that period or may require that they be kept longer.

The department, by rule, may require the taxpayer to keep other records as it may deem necessary for the proper enforcement of this chapter.

(b) If any taxpayer fails to keep records upon which a proper determination of the fees due under this chapter may be made, the department may fix the amount of fees for any period from the best information it may obtain and assess the fees as provided herein.

§ -8 Inspection. The director, or the duly authorized agent of the director, may examine all records required to be kept under this chapter and books, papers, and records of any person engaged in the sale of sugar-sweetened beverages, syrup, or powder to verify the accuracy of the payment of the fees imposed by this chapter and other compliance with this chapter and rules adopted pursuant thereto. Every person in possession of such books, papers, and records and the person's agents and employees shall give the director, or the duly authorized agent of the director, the means, facilities, and opportunities for the examination.

§ -9 Fees in addition to other taxes. The fees imposed by this chapter shall be in addition to any other tax imposed upon the business of selling sugar-sweetened beverages, syrup, or powder or upon any of the transactions, acts, or activities assessed fees by this chapter.

§ -10 Appeals. Any person aggrieved by any assessment of the fees imposed by this chapter may appeal the assessment in the manner and within the time and in all other respects as provided in the case of income tax appeals by section 235-114. The hearing and disposition of the appeal, including the distribution of costs, shall be as provided in chapter 232.

§ -11 Other provisions applicable. All of the provisions of chapters 231, 235, 237, and 238 not inconsistent with this chapter and that may appropriately be applied to the fees, persons, circumstances, and situations involved in this chapter, including without prejudice to the generality of the foregoing: provisions as to penalties and interest; provisions granting administrative powers to the director; and provisions for the assessment, levy, and collection of taxes; shall be applicable to the fees imposed by this chapter and to the assessment, levy, and collection thereof.

§ -12 Investigations; contempts; fees. (a) The director, and any agent authorized by the director to conduct any inquiry, investigation, or hearing under this section, shall have power to administer oaths and take testimony under oath relative to the matter of inquiry or investigation. At any hearing ordered by the director, the director or the director's agent may subpoena witnesses and require the production of books, papers, and documents pertinent to the inquiry. No witness under subpoena authorized to be issued by this section shall be excused from testifying or from producing books, papers, or documents on the ground that the testimony or the production of the books or other documentary evidence would tend to incriminate the witness, but the evidence or the books, papers, or documents so produced shall not be used in any criminal proceeding against the witness.

(b) If any person disobeys a subpoena process or, having appeared in obedience thereto, refuses to answer any pertinent question put to the person by the director or the director's authorized agent or to produce any books, papers, and documents pursuant thereto, the director or the agent may apply to the circuit court of the circuit wherein the taxpayer resides or wherein the transaction, act, or activity under investigation has occurred, or to any judge of the court, setting forth the disobedience to process or refusal to answer. The court or the judge shall cite the person to appear before the court or the judge to answer the question or to produce such books, papers, or documents and, upon the person's refusal shall hold the person in contempt and sentence the person to prison until the person testifies; provided that the period of imprisonment shall not exceed sixty days. Notwithstanding the serving of the term of any imprisonment by any person, the director may proceed in all respects with the inquiry and examination as if the witness had not previously been called upon to testify.

(c) Officers who serve subpoenas issued by the director or under the director's authority and witnesses attending hearings conducted by the director shall be awarded fees in an amount equal to witness fees awarded in accordance with section 621-7, to be paid on vouchers of the director, from any moneys available for litigation expenses of the department.

§ -13 Administration by director; rules. The administration of this chapter is vested in the director, who may adopt and enforce rules in accordance with chapter 91 for the enforcement and administration of this chapter.

§ -14 Disposition of revenues. Revenues collected under this chapter shall be used by the department of education for cooking, gardening, nutrition, physical education, early education, science, and youth health programs at public and charter schools; provided that revenues may be used for administration expenses associated with the programs.

§ -15 Exemptions. The following shall be exempt from the fees imposed by this chapter:

(1) Bottled sugar-sweetened beverages, syrups, and powder sold to the United States government and American Indian tribal governments;

(2) Bottled sugar-sweetened beverages, syrups, and powder sold by a distributor or a retailer expressly for resale or consumption outside the State; and

(3) Bottled sugar-sweetened beverages, syrups, and powder sold by a distributor to another distributor, if the sales invoice clearly indicates that the sale is exempt; provided that:

(A) If the sale is to a person who is a distributor and a retailer, the sale shall be exempt and the fees shall be paid when the purchasing distributor-retailer resells the product to a retailer or a consumer; and

(B) This exemption shall not apply to any other sale to a retailer."

SECTION 2. This Act, upon its approval, shall apply to taxable years beginning after December 31, 2016.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	837
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII