Occupations requiring licenses; definitions; fees; exemptions

# (a)

“Persons” as defined in § 2701 of this title engaged in the occupations listed and defined in this section shall pay annual license taxes at the rates specified below. In addition to the license fee indicated below, each such person shall pay a fee of $25 for each additional branch or business location, except that a finance or small loan agency as defined in this section shall pay the basic annual fee for each place of business.

# (1)

Advertising agency, $75. “Advertising agency” includes every person engaged in the business of displaying advertising matter by billboards, posters or circulars, signs or window display, or of undertaking the writing or composition of advertisements for other persons on a commission, rental or flat fee basis.

# (2)

Amusement conductor, $75. “Amusement conductor” includes every person engaged in the business of conducting or maintaining or furnishing on a commission or other basis mechanical or electronic devices for entertainment of the general public, for which a charge is made for the use thereof; provided further than an owner of certain of such mechanical or electrical devices operated automatically by insertion of a coin or token shall pay an additional license fee for the business as defined and at the rates prescribed as follows:

“Amusement machine owner” embracing every person engaged in the business of owning and operating either on the person’s own account or by an agent, or by lease to another from such person or the agent, certain of the mechanical or electronic devices referred to in this section for furnishing to the public, music by the playing of records or transcriptions or which constitute a game or other device designed for public amusement, a fee for a license at the rate of $75 for each machine so owned and operated, provided the coin or token necessary to operate such machine is worth 5 cents or more.

# (3)

Auctioneer, $ 75. “Auctioneer” includes every person engaged in the business of crying sales of real or personal property on behalf of other persons for profit, except as otherwise provided by the provisions of this chapter. Any auctioneer not a citizen of this State shall be required to pay $ 225 for each county in which the person acts as auctioneer. No auctioneer shall be authorized by virtue of the license granted to employ any other person to act as auctioneer in the auctioneer's behalf, except in the auctioneer's own store or warehouse or in the auctioneer's presence, nor shall the term “auctioneer” apply or extend to a judicial or executive officer making sales in pursuance of any execution, judgment, or decree of any court nor to public sales made by executors or administrators.

# (4)

Broker, $75. “Broker” includes every person operating a business of buying and selling for the account of other persons for a commission or for profit, stocks, bonds, currency, negotiable paper, securities and any other intangible personal property.

# (5)

Circus exhibitor, $750. “Circus exhibitor” includes every person engaged in the business of exhibiting in a tent, arena, or other open space equestrian stunts, acrobatic stunts, freaks, trained or wild animals, and other forms of entertainment commonly known as a circus. This paragraph (a)(5) shall not be construed to include any circus or carnival for private profit sponsored by or in which any fire company of the State, or any fraternal, veteran’s or religious organization shall share in the profits. The license fee for such circus or carnival shall be $300.

# (6)

Commercial lessor, $75. “Commercial lessor” includes every person who, as lessor or sublessor, receives rental income pursuant to any agreement transferring a title interest or possessory interest in real property located in this State under a lease of a commercial unit for any term. For this purpose, “commercial unit” means a structure or that part of a structure which is used for purposes other than a dwelling unit or farm unit.

# (7)

Drayperson or mover, $75. “Drayperson or mover” includes every person operating a business of transporting for profit tangible personal property of other persons.

# (8)

Finance or small loan agency, $450. “Finance or small loan agency” includes every person engaged in the business of lending money, with or without security, to other persons, with repayments of the loans to be made by installments or otherwise, but shall not include, either in reference to future or past transactions, banks or trust companies authorized to do banking business in the State under Title 5.

# (9)

Hotel, $25 for each room and $30 for each suite. “Hotel” includes every person engaged in the business of operating a place where the public may, for a consideration, obtain sleeping accommodations and meals and which, in an incorporated town, has at least 10 and in any other place at least 6 permanent bedrooms for the use of guests.

# (10)

Manufacturer’s agent or representative, $75. “Manufacturer’s agent” or “representative” includes every independent contractor in the business of representing 1 or more manufacturers for purposes of promoting the sale of the goods, product, or line of goods or products of such manufacturer or manufacturers within the State.

# (11)

Mercantile agency or collection agency, $75. “Mercantile agency” or “collection agency” includes every person operating a business of investigation of financial ratings and credit and/or the collection of commercial or consumer accounts for other persons, except attorneys-at-law having a license to practice such profession in this State.

# (12)

Motel, $25 for each room. “Motel” includes every person engaged in the business of furnishing for a consideration, transient guests with sleeping accommodations, private bath and toilet facilities, linen service and a place to park an automobile and who is not in the business of operating a hotel or tourist home as defined in this section.

# (13)

Outdoor musical festival promoter, $750. “Outdoor musical festival promoter” includes every person engaged in the business of organizing, operating, producing or staging musical entertainment in open spaces and not in a permanent structure for a gathering of 1,000 or more persons who pay a consideration or admission charge to view or hear such musical entertainment.

# (14)

Parking lot or garage operator, $75 for the first lot or garage facility and $35 for each additional facility. “Parking lot” or “garage operator” includes every person engaged in the business of operating any motor vehicle parking facility, whether open or enclosed, with space for 10 or more vehicles.

# (15)

Photographer, $75. “Photographer” includes every person operating a business of taking, making and/or developing photographs or pictures by action of light for profit or reward. Transient photographers without a regular and established place of business within the State shall pay an additional license tax of $25 for each day of operation within the State.

# (16)

Real estate broker, $75. “Real estate broker” includes every person certified as such by the Delaware Real Estate Commission and engaged in the real estate business. It includes those among such persons who deal exclusively or partly with rental property.

# (17)

Recreational vehicle park, $10 for each space as specified on a plot plan or as designated by the owner. “Recreational vehicle park,” which may also be identified as a tenting recreation park, includes any person engaged in the business of operating any place where space is furnished for units to park and hook up to or use sanitary and/or electrical facilities. This paragraph (a)(17) shall not apply to mobile home parks.

# (18)

Sales representative, $75. “Sales representative” includes every person who works in excess of 80 hours in any calendar month in the year selling goods or merchandise door to door. It includes soliciting orders and home demonstrations.

# (19)

Security alarm business, $115. “Security alarm business” includes every security alarm business defined in § 1201 of Title 24.

# (20)

Showperson, $375. “Showperson” includes every person engaged in the business of conducting or operating for profit a public theater, house or other enclosed place for the exhibition of stage shows or musical presentations, animal shows, carnivals for private profit and all other amusements of like character.

# (21)

Taxicab or bus operator, $45, for the first motor vehicle; $30, for each additional motor vehicle. “Taxicab” or “bus operator” includes every person engaged in the business of the operation of motor vehicles in transporting persons for hire in the accommodation of the general public. A public carrier holding a certificate of public convenience and necessity issued by the Delaware Transportation Authority of the Department of Transportation authorizing it to operate a taxicab business, which actually operates such taxicab business through the leasing of its taxicab vehicles to independent contractor lessee drivers, shall be construed to be a “person” under this paragraph (a)(21) “engaged in the business of the operation of motor vehicles in transporting persons for hire in the accommodation of the general public” and shall pay the above-specified annual fees for its taxicab motor vehicles which are subject to such leasing for the year involved, and none of the independent contractor lessee drivers of such vehicles shall be construed to be a “person engaged in the business of the operation of motor vehicles in transporting persons for hire in the accommodation of the general public” within the meaning of this paragraph (a)(21). This tax shall not apply however, to the operation of school buses used solely in the transportation of children to and from kindergarten, grade school, vocational school and high school.

# (22)

Tourist home, $15 for each room. “Tourist home” includes every person who operates a place where tourists or transient guests, for a consideration, may obtain sleeping accommodations and which has at least 5 permanent bedrooms for the use of tourists or transient guests and who is not in the hotel or motel business as defined in this section.

# (23)

Transportation agent, $75. “Transportation agent” includes every person operating a business of selling tickets on behalf of other persons, for transportation by common carriers on a commission basis or for profit.

# (24)

Travel agency, $225. “Travel agency” includes every person in the business of operating a full service travel bureau or department which assists in the planning and acquisition of tickets for contemplated trips of its customers by land, sea or air and for related accommodations.

# (25)

Headquarters Management Corporation, $5,000; provided, however, that in the case of any affiliated group, as defined in § 6401(1) of this title, only 1 member of such affiliated group that is a Headquarters Management Corporation shall be liable for a $5,000 annual license tax under this paragraph (a)(25), and each other member of such affiliated group that is a Headquarters Management Corporation shall pay a license tax of $500. For purposes of this paragraph (a)(25), “Headquarters Management Corporation” has the meaning set forth in § 6401(5) of this title.

# (26)

Direct care worker, $75. “Direct care worker” means, for purposes of this title, an individual (aide, assistant, caregiver, technician or other designation used) under contract to, but not employed by, a personal assistance services agency to provide personal care services, companion services, homemaker services, transportation services and those services as permitted in § 1921(a)(15) of Title 24 to consumers. The direct care worker provides these services to an individual primarily in the individual’s place of residence.

# (27)

Interactive fantasy sports registrant, $50,000. “Interactive fantasy sports registrant” shall have the same meaning as set forth in § 4862 of Title 29.

# (28)

Accommodations intermediary, $25. “Accommodations intermediary” means any person engaged in the business of facilitating or arranging a “short-term rental,” as defined in § 6201 of this title, to an occupant on a website or through other means, including the renting of properties subject to a “timeshare plan” as defined by 11 U.S.C. § 101. The term “accommodations intermediary” includes a real estate broker licensed under paragraph (a)(16) of this section, but only includes the broker of record and not real estate licensees working under that broker. This license fee shall not apply to a hotel, motel, or tourist home subject to a separate license fee under this subsection. The owner of a “short-term rental,” as defined in § 6201 of this title, that exclusively uses a third-party accommodations intermediary shall not be deemed an accommodations intermediary under this section.

# (b)

Upon every person engaging or continuing to engage in any service industry, business, calling or profession not otherwise specifically licensed and taxed under subsection (a) of this section, there is hereby levied and there shall be collected an annual general service license fee of $75.

# (c)

# (1)

Any person licensed under subsection (a) or (b) of this section whose business activity or operation is not limited to the rendition of services for other persons but also involves the sale or exchange of goods or personal property shall also be subject to the license fees imposed by Chapter 29 of this title.

# (2)

Paragraph (c)(1) of this section shall not apply to any case in which the sale or exchange of goods or personal property is incidental to the business activity licensed under subsection (a) or (b) of this section. For the purposes of this subsection, such sales or exchanges shall be deemed to be incidental if the gross receipts from such sales or exchanges do not exceed $8,500. In such case, Chapter 29 of this title shall not apply, but such incidental sales shall be included in gross receipts subject to tax under Chapter 23 of this title.

# (3)

The purchase of debt obligations of “affiliated corporations” shall not cause a person to be subject to tax under this chapter; provided, that the foregoing provision shall not apply to an “affiliated finance company” as defined in § 6301(2) of this title. For purposes of the foregoing sentence “affiliated corporations” shall have the same meaning as in § 6301(1) of this title.

# (d)

# (1)

In addition to the license fee required by subsections (a) and (b) of this section, every person shall also pay a license fee at the rate of 0.3983% of the aggregate gross receipts paid to such person attributable to activities licensable under this chapter, which fee shall be payable monthly on or before the twentieth day of each month with respect to the aggregate gross receipts for the immediately preceding month. In computing the fee due on such aggregate gross receipts for each month, there shall be allowed a deduction of $100,000. For purposes of this subsection, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

# (2)

Notwithstanding paragraph (d)(1) of this section, if the taxable gross receipts prescribed by paragraph (d)(1) of this section during the lookback period as defined in § 2122 of this title do not exceed the applicable threshold of $1,500,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the first month following the close of the quarter. (The applicable threshold in this paragraph (d)(2) is subject to annual adjustment as more fully set forth in § 515 of this title.) In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $300,000. For purposes of this paragraph (d)(2), all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

# (3)

a. For persons described in paragraph (a)(27) of this section, for the privilege of conducting interactive fantasy sports contests in the State, interactive fantasy sports registrants shall also pay a license fee at a rate equal to 15.5% of their aggregate interactive fantasy sports gross receipts generated within the State. For purposes of this section, “interactive fantasy sports gross receipts” means an amount equal to the total of all entry fees that the registrant collects from all authorized players, less the total of all sums paid out as winnings to all authorized players, multiplied by the “resident percentage,” as defined in § 4862 of Title 29.

b. The fees provided by this section shall be remitted to the Division of Revenue on forms issued by the Director of Revenue and subject to such regulations and requirements as shall be prescribed by the Director of Revenue. The Director of Revenue shall deposit the license fees imposed by paragraphs (a)(27) and (d)(3) of this section on interactive fantasy sports registrants to the credit of the general fund, net of administrative expenses incurred by the Division of Revenue in enforcing this subsection and the Division of Gaming Enforcement in enforcing Chapter 48 of Title 29.

c. [Repealed.]

# (4)

[Repealed.]

# (e)

“Gross receipts” is defined as total consideration for services rendered, goods sold, or other-income producing transaction within this State, including fees and commissions.

# (1)

For persons described in paragraphs (a)(4) and (16) of this section the tax imposed under subsection (d) of this section shall be imposed on the broker. Salespersons operating in the broker’s office shall be exempt from the taxes and fees imposed by subsections (b) and (d) of this section with respect to services performed in connection with the broker’s business; provided, however, that commissions and fees paid to such salespersons shall be subject to tax under subsection (d) of this section as though such fees or commissions were received by the broker.

# (2)

Any person functioning in an “employee” relationship as defined in the Federal Insurance Contribution Act [26 U.S.C. § 3101 et seq.] shall be exempt from this chapter with respect to activities as an employee.

# (3)

In the case of partnerships, professional corporations or associations, the tax imposed under subsection (d) of this section shall be imposed on the aggregate gross receipts of such partnerships, professional corporation or association.

# (4)

Any person functioning as a “partner” shall be exempt from this chapter with respect to activities solely as a “partner”.

# (5)

Gross receipts for businesses described in paragraphs (a)(1), (3), (4), (10), (11) and (16) of this section shall consist of commissions and fees earned.

# (6)

Gross receipts for commercial lessors as defined in paragraph (a)(6) of this section shall consist of the rental payment received for a commercial unit located in this State; provided, however, that:

a. Nothing in this section shall be interpreted to impair a commercial lessor’s right under an existing or future lease to require the lessee therein to pay or to reimburse the lessor for the license fees herein imposed as part of the lessee’s specified or general obligation to pay or reimburse lessor for gross receipts tax, real estate taxes or other governmental assessments, charges or fees;

b. Every commercial lessor, who is also a sublessor, shall exclude from gross receipts the amount said lessor pays to another lessor as rent for the same commercial unit; and

c. Any rental income received by a commercial lessor who has paid the transfer tax pursuant to § 5402(d) of this title shall not be included as gross receipts received by the commercial lessor.

# (7)

For licenses covered under subsection (b) of this section, any exception from the gross receipts definition as set forth in this subsection is subject to the rules and regulations as promulgated by the Secretary of Finance.

# (f)

Paragraphs (a)(5), (8), (9), (12), (13), (17), (18), (20)-(25), and (28) of this section shall be exempt from the additional license fee imposed by subsection (d) of this section.

# (g)

The additional license fee imposed by subsection (d) of this section shall not apply to those receipts of draypersons or movers if such receipts are derived from interstate transports, nor shall this section be applicable to receipts received during the time in which said section was enacted into law.

# (h)

– (n) [Repealed.]

(o) Banks, corporations described in § 1902(b)(8) of this title, insurance companies, including, general agents, agents, brokers and employees licensed under Title 18, pension plans and/or profit-sharing plans whether or not regulated under § 401 of the Internal Revenue Code of 1986 [26 U.S.C. § 401], as amended, public utilities as defined in Chapter 1 of Title 26 (but only with respect to gross receipts or the sale price of services and commodities taxable under, or with respect to which taxes are imposed by Chapter 55 of this title), distributors of direct-to-home satellite services (but only with respect to gross receipts or the sale price of services and commodities upon which taxes are imposed by Chapter 55 of this title), public utility holding companies regulated under the Public Utility Holding Company Act of 1935 [former 15 U.S.C. § 79 et seq., now repealed; see Energy Policy Act of 2005 (42 U.S.C. § 15801 et seq.)], savings and loan associations or building and loan associations licensed under Chapter 17 of Title 5, and similar or related financial institutions licensed or otherwise regulated under the Delaware law or the United States Code are exempt from payment of fees as set forth in subsections (b) and (d) of this section; provided, however, this exemption shall not apply to those activities of the foregoing persons which are required to be licensed under paragraph (6) of subsection (a) of this section.

(p) Nonprofit organizations exempted from federal income taxation under § 501 of the Internal Revenue Code of 1986 [26 U.S.C. § 501], as amended, shall be exempt from payment of fees as set forth in subsections (a), (b) and (d) of this section.

(q), (r) [Repealed.]

(s) Real estate mortgage investment conduits (as defined in § 860D of the Internal Revenue Code of 1986 [26 U.S.C. § 860D], as amended), are exempt from payment of fees as set forth in subsections (b) and (d) of this section.

(t) Chapter 12 of Title 24 notwithstanding, the term of new licenses and renewals issued to security alarm businesses shall be governed exclusively by this part; provided, however, that the Division shall not issue a license to a security alarm business without the approval of the Superintendent of the Delaware State Police under Chapter 12 of Title 24. Two-year security business licenses expiring between June 27, 1989, and June 27, 1991, shall be renewed for a period no greater than 1 year at an annual fee of $75, and such license shall expire the following December 31. The fee shall be reduced according to the number of full calendar months remaining in the year.

(u) Statutory trusts formed under the laws of this State which are registered as investment companies under the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-1 et seq.), are exempt from payment of fees as set forth in subsections (b) and (d) of this section.

(v) Corporations registered as investment advisors under the Investment Advisors Act of 1940, as amended (15 U.S.C. § 80b-1 et seq.), corporations registered as transfer agents under § 17A of the Securities Exchange Act of 1934, as amended (15 U.S.C. § 78q-1) and corporations acting as principal underwriters as defined in § 2(a)(29) of the Investment Company Act of 1940, as amended (15 U.S.C. § 80a-2(a)(29)), are exempt from the payment of fees as set forth in subsection (b) of this section and from fees as set forth in subsection (d) of this section upon gross receipts received from statutory trusts described in subsection (u) of this section.

(w) Licensees to conduct horse racing meetings and licensees to conduct pari-mutuel or totalizator wagering or betting licensed under Chapter 101 of Title 3 or Chapter 4 of Title 28 shall be exempt from any license or license fees under this chapter, to the extent activities under this chapter are related to the conduct of horse racing meets.

(x) For tax periods beginning after December 31, 2002, and ending on or before December 31, 2005, individuals who contract with the State Fire Prevention Commission to provide instructional services to the Delaware State Fire School pursuant to § 6619 of Title 16 are exempt from the license requirement and fees imposed by this section, but only to the extent that the license and fees relate to receipts from and services provided to the Delaware State Fire School.