BILL NUMBER: AB 781 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 9, 2013
AMENDED IN ASSEMBLY APRIL 18, 2013
INTRODUCED BY Assembly Member Bocanegra
FEBRUARY 21, 2013
An act to add Sections 7153.6 and 55363.5 to the Revenue and
Taxation Code, relating to taxation.
LEGISLATIVE COUNSEL'S DIGEST
AB 781, as amended, Bocanegra. Sales and use taxes: fees:
administration: violations for noncompliance: sales suppression
devices.
Existing law requires the payment of sales and use
taxes, and specified taxes, fees, and surcharges that are
administered by the State Board of Equalization under the provisions
of the Sales and Use Tax Law and the Fee Collection Procedures Law,
as prescribed respectively .
This bill would, under those laws, provide that a person who
knowingly purchases, installs, or uses in
this state any automated sales suppression device or zapper or
phantom-ware with the intent to defeat or evade the determination of
an amount due or collected pursuant to those laws is guilty of a
misdemeanor, and would provide that any person who, for commercial
gain, sells, purchases, installs, transfers,
possesses, or uses or possesses in this state
any automated sales suppression device or zapper or phantom-ware
with the knowledge that the sole purpose of the device is to defeat
or evade the determination of an amount due or collected is
guilty of an offense punishable by a fine, imprisonment, or both, as
specified. This bill would also provide that the person is liable for
all taxes, interest, and penalties due as the result of the use of
an automated sales suppression device or zapper or phantom-ware. By
creating a new crime, this bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7153.6 is added to the Revenue and Taxation
Code, to read:
7153.6. (a) Notwithstanding any other provision of this part,
a any person who purchases, installs, or uses
in this state any automated sales suppression device or zapper or
phantom-ware with the intent to defeat or evade the determination of
an amount due pursuant to this part is guilty of a misdemeanor.
(b) (1) Any
person who knowingly , for
commercial gain, sells, purchases, installs, transfers,
possesses, or uses or possesses in this
state any automated sales suppression device or zapper or
phantom-ware with the knowledge that the sole purpose of the
device is to defeat or evade the determination of an amount due
pursuant to this part is guilty of an offense punishable by a
fine of not more than ten thousand dollars ($10,000)
as specified in paragraph (2) , by imprisonment
in a county jail for not more than one year, or, pursuant to
subdivision (h) of Section 1170 of the Penal Code, for 16 months, or
two, two or three years, or by both
that fine and imprisonment. In addition, any person who uses an
automated sales suppression device or zapper or phantom-ware shall be
liable for all taxes, interest, and penalties due as a result of the
use of that device.
(2) (A) Where a person is guilty of the offense described in
paragraph (1) and the person sold, installed, transferred, or
possessed three or fewer automated sales suppression devices or
zappers or phantom-ware, that person shall be guilty of an offense
punishable by a fine of not more than five thousand dollars ($5,000).
(B) Where a person is guilty of the offense described in paragraph
(1) and the person sold, installed, transferred, or possessed more
than three automated sales suppression devices or zappers or
phantom-ware, that person shall be guilty of an offense punishable by
a fine of not more than ten thousand dollars ($10,000).
(b)
(c) For purposes of this section:
(1) "Automated sales suppression device" or "zapper" means a
software program carried on a memory stick or removable compact disc,
accessed through an Internet link, or accessed through any other
means, that falsifies the electronic records of electronic cash
registers and other point-of-sale systems, including, but not limited
to, transaction data and transaction reports.
(2) "Electronic cash register" means a device that keeps a
register or supporting documents through the means of an electronic
device or computer system designed to record transaction data for the
purpose of computing, compiling, or processing retail sales
transaction data in whatever manner.
(3) "Phantom-ware" means a hidden, preinstalled, or installed at a
later time programming option embedded in the operating system of an
electronic cash register or hardwired into the electronic cash
register that can be used to create a virtual second till or may
eliminate or manipulate transaction records that may or may not be
preserved in digital formats to represent the true or manipulated
record of transactions in the electronic cash register.
(4) "Transaction data" includes information regarding items
purchased by a customer, the price for each item, a taxability
determination for each item, a segregated tax amount for each of the
taxed items, the amount of cash or credit tendered, the net amount
returned to the customer in change, the date and time of the
purchase, the name, address, and identification number of the vendor,
and the receipt or invoice number of the transaction.
(d) This section shall not preclude prosecution under any other
law.
SEC. 2. Section 55363.5 is added to the Revenue and Taxation Code,
to read:
55363.5. (a) Notwithstanding any other provision of this part,
a any person who purchases, installs, or uses
in this state any automated sales suppression device or zapper or
phantom -ware with the intent to defeat or evade the
determination of an amount collected pursuant to this part is guilty
of a misdemeanor.
(b) (1) Any
person who knowingly , for commercial gain,
sells, purchases, installs, transfers, possesses, or
uses or possesses in this state any automated
sales suppression device or zapper or phantom-ware with the
knowledge that the sole purpose of the device is to defeat or evade
the determination of an amount collected pursuant to this part
is guilty of an offense punishable by a fine of not more
than ten thousand dollars ($10,000) as specified in
paragraph (2) , by imprisonment in a county jail for not more
than one year, or, pursuant to subdivision (h) of Section 1170 of the
Penal Code, for 16 months, or two, two
or three years, or by both that fine and imprisonment. In addition,
any person who uses an automated sales suppression device or zapper
or phantom-ware shall be liable for all taxes, interest, and
penalties due as a result of the use of that device.
(2) (A) Where a person is guilty of the offense described in
paragraph (1) and the person sold, installed, transferred, or
possessed three or fewer automated sales suppression devices or
zappers or phantom-ware, that person shall be guilty of an offense
punishable by a fine of not more than five thousand dollars ($5,000).
(B) Where a person is guilty of the offense described in paragraph
(1) and the person sold, installed, transferred, or possessed more
than three automated sales suppression devices or zappers or
phantom-ware, that person shall be guilty of an offense punishable by
a fine of not more than ten thousand dollars ($10,000).
(b)
(c) For purposes of this section:
(1) "Automated sales suppression device" or "zapper" means a
software program carried on a memory stick or removable compact disc,
accessed through an Internet link, or accessed through any other
means, that falsifies the electronic records of electronic cash
registers and other point-of-sale systems, including, but not limited
to, transaction data and transaction reports.
(2) "Electronic cash register" means a device that keeps a
register or supporting documents through the means of an electronic
device or computer system designed to record transaction data for the
purpose of computing, compiling, or processing retail sales
transaction data in whatever manner.
(3) "Phantom-ware" means a hidden, preinstalled, or installed at a
later time programming option embedded in the operating system of an
electronic cash register or hardwired into the electronic cash
register that can be used to create a virtual second till or may
eliminate or manipulate transaction records that may or may not be
preserved in digital formats to represent the true or manipulated
record of transactions in the electronic cash register.
(4) "Transaction data" includes information regarding items
purchased by a customer, the price for each item, a taxability
determination for each item, a segregated tax or fee amount for each
of the items subject to the tax or fee, the amount of cash or credit
tendered, the net amount returned to the customer in change, the date
and time of the purchase, the name, address, and identification
number of the vendor, and the receipt or invoice number of the
transaction.
(d) This section shall not preclude prosecution under any other
law.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.