1.This Act may be cited as the
Mobile Wireless Tax Fairness Act of
2008
.
2.Congress finds the following:
(1)It is appropriate
to exercise congressional enforcement authority under section 5 of the 14th
amendment to the Constitution of the United States and Congress’ plenary power
under article I, section 8, clause 3 of the Constitution of the United States
(commonly known as the commerce clause
) in order to ensure that
States and political subdivisions thereof do not discriminate against providers
and consumers of mobile services by imposing new selective and excessive taxes
and other burdens on such providers and consumers.
(2)In light of the
history and pattern of discriminatory taxation faced by providers and consumers
of mobile services, the prohibitions against and remedies to correct
discriminatory State and local taxation in section 306 of the Railroad
Revitalization and Regulatory Reform Act of 1976 (49 U.S.C. 11501) provide an
appropriate analogy for congressional action, and similar Federal legislative
measures are warranted that will prohibit imposing new discriminatory taxes on
providers and consumers of mobile services and that will assure an effective,
uniform remedy.
3.
(a)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 the enactment of this Act.
(b)In
this Act:
(1)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 the enactment of this Act,
or any other service that is primarily intended for receipt on, transmission
from, or use with a mobile telecommunications device, including the receipt of
a digital good.
(2)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 goodwill, licenses, customer lists, and other similar intangible
property associated with such business.
(3)The term mobile service provider means any
entity that sells or provides mobile services, but only with respect to the
portion of such entity's trade or business that sells or provides such
services.
(4)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 the enactment of this Act.
(5)State or local
jurisdictionThe 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.
(6)
(A)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)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)
(1)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
principlesExcept 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)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—
(i)specific
services;
(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 not to 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.
4.
(a)Notwithstanding any provision of section 1341 of title
28, United States Code, or the constitution or laws of any State, the district
courts of the United States shall have jurisdiction, without regard to amount
in controversy or citizenship of the parties, to grant such mandatory or
prohibitive injunctive relief, interim equitable relief, and declaratory
judgments as may be necessary to prevent, restrain, or terminate any acts in
violation of this Act, provided that:
(1)Such
jurisdiction shall not be exclusive of the jurisdiction which any Federal or
State court may have in the absence of this section.
(2)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.
(3)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 not more than the
discriminatory or excessive portion of the tax as determined by the
court.