NAC: CHAPTER 368A - TAX ON LIVE ENTERTAINMENT

[Rev. 8/27/2018 12:26:38 PM]

[NAC-368A Revised Date: 8-18]

CHAPTER 368A - TAX ON LIVE ENTERTAINMENT

ADMINISTRATION OF TAX BY DEPARTMENT OF TAXATION

368A.010 Definitions.

368A.030 “Commission” defined.

368A.040 “Department” defined.

368A.070 “Nonprofit organization” defined.

368A.080 “Patron” defined.

368A.090 “Taxpayer” defined.

368A.093 “Ticket broker” defined.

368A.095 “Ticket service provider” defined.

368A.100 Interpretation of certain terms.

368A.110 Taxpayers: General requirements; specification of provisions applicable to licensed gaming establishments, escorts and escort services.

368A.120 Applicability of tax: Admission charge to facility; exceptions.

368A.130 Determination of maximum occupancy by Department; presumption when maximum occupancy not designated on permit; rebuttal of presumption by taxpayer.

368A.140 Computation of amount of tax due: Generally.

368A.143 Computation of amount of tax due: License or rental fee paid for luxury suite, box or similar product.

368A.147 Collection of tax due.

368A.150 Scope of exemption for nonprofit organizations; assessment and computation of tax by Department.

368A.160 Documentation required for exemption of nonprofit organization.

368A.170 Over-collection of tax: Duties of taxpayer and Department; refund to patron; payment of over-collection to Department under certain circumstances.

ADMINISTRATION OF TAX BY NEVADA GAMING CONTROL BOARD

368A.300 Definitions.

368A.310 “Board” defined.

368A.320 “Chair” defined.

368A.340 “Nonprofit organization” defined.

368A.350 “Nonrestricted license” defined.

368A.355 “Operator” defined.

368A.360 “Package” defined.

368A.370 “Patron” defined.

368A.380 “Restricted license” defined.

368A.390 “Taxpayer” defined.

368A.393 “Ticket broker” defined.

368A.395 “Ticket service provider” defined.

368A.400 Interpretation of certain terms.

368A.405 Advisory opinion of Board: Contents of request by taxpayer; applicability; publication authorized; availability of other remedies.

368A.410 Applicability of tax: Admission charge to facility; request for approval of alternative method of determination.

368A.420 Applicability of tax: Particular circumstances of admission charge; exceptions.

368A.440 Determination of maximum occupancy by Board; presumption when maximum occupancy not designated on permit; rebuttal of presumption by taxpayer.

368A.450 Computation of amount of tax due: Generally.

368A.453 Computation of amount of tax due: License or rental fee paid for luxury suite, box or similar product; request for approval of alternative method of calculating.

368A.457 Collection of tax due.

368A.460 Statement of admission charge shown on ticket or displayed at box office: Required disclosure; payment of tax based on admission charge shown or displayed; receipt substitutes for ticket.

368A.470 Scope of exemption for nonprofit organizations; assessment and computation of tax by Board.

368A.480 Documentation required for exemption of nonprofit organization.

368A.490 Responsibilities of persons licensed to conduct gaming at gaming establishment: Payment of tax; maintenance of records; monthly and quarterly reports.

368A.500 Records: Taxpayer, operator and ticket service provider required to record all sales; responsibilities of taxpayer; maintenance and availability.

368A.510 Procedures for internal control.

368A.520 Refund of overpayment of taxes.

368A.525 Over-collection of tax: Duties of taxpayer and Board; refund to patron; payment of over-collection to Board under certain circumstances.

368A.530 Penalty for evasion or nonpayment of tax.

368A.540 Violation constitutes unsuitable method of operation.

ADMINISTRATION OF TAX BY DEPARTMENT OF TAXATION

NAC 368A.010 Definitions. (NRS 360.090, 368A.140) As used in NAC 368A.010 to 368A.170, inclusive, unless the context otherwise requires, the words and terms defined in NAC 368A.030 to 368A.095, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R196-05, 2-23-2006; R062-15, 11-2-2016)

NAC 368A.030 “Commission” defined. (NRS 360.090, 368A.140) “Commission” means the Nevada Tax Commission.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003)

NAC 368A.040 “Department” defined. (NRS 360.090, 368A.140) “Department” means the Department of Taxation.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003)

NAC 368A.070 “Nonprofit organization” defined. (NRS 360.090, 368A.140) “Nonprofit organization” means any organization described in paragraph (a) of subsection 2 of NRS 368A.200 or paragraph (d) of subsection 4 of that section.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R196-05, 2-23-2006; R062-15, 11-2-2016)

NAC 368A.080 “Patron” defined. (NRS 360.090, 368A.140) “Patron” means a person who gains access to a facility where live entertainment is provided and who neither solicits nor receives, from any source, any payment, reimbursement, remuneration or other form of consideration, other than a prize for participation in a contest between patrons, for being present in the facility or providing live entertainment at the facility.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R062-15, 11-2-2016)

NAC 368A.090 “Taxpayer” defined. (NRS 360.090, 368A.140) “Taxpayer” means any person described in NRS 368A.110.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003)

NAC 368A.093 “Ticket broker” defined. (NRS 360.090, 368A.140) “Ticket broker” means a person who is not affiliated with a taxpayer and who purchases an admission to a facility where live entertainment is provided from the taxpayer for the purpose of resale to a patron.

(Added to NAC by Tax Comm’n by R062-15, eff. 11-2-2016)

NAC 368A.095 “Ticket service provider” defined. (NRS 360.090, 368A.140) “Ticket service provider” means a person who, pursuant to an agreement with a taxpayer and on behalf of the taxpayer, sells to a patron an admission to a facility where live entertainment is provided.

(Added to NAC by Tax Comm’n by R062-15, eff. 11-2-2016)

NAC 368A.100 Interpretation of certain terms. (NRS 360.090, 368A.140) For the purposes of chapter 368A of NRS and NAC 368A.010 to 368A.170, inclusive, the Commission will interpret the term:

1. “Admission” to mean the right or privilege to enter, or have access to, a facility where live entertainment is provided.

2. “Boxing contest or exhibition” to have the meaning ascribed in NRS 467.0107 to the term “unarmed combat.”

3. “Complimentary” to mean the granting of admission to a facility where live entertainment is provided without the receipt of any form of payment or consideration by the taxpayer from any person who is not affiliated with the taxpayer.

4. “Marketing or promotional activity” to mean an activity described in subparagraphs (1) to (8), inclusive, of paragraph (a) of subsection 2 of NRS 368A.090 that is provided for the primary purpose of drawing attention to a particular product, service or brand.

5. “Membership fee” to mean an amount paid for a membership that provides admission to a facility where live entertainment is provided.

6. “Performance” to mean the presentation of an activity described in subparagraphs (1) to (8), inclusive, of paragraph (a) of subsection 2 of NRS 368A.090 that is the primary reason for which a patron or patrons paid an admission charge to enter, or have access to, the facility. In determining whether an activity constitutes a performance pursuant to this subsection, the Commission may consider, without limitation, the following factors:

(a) Whether the activity is advertised, promoted or otherwise marketed; and

(b) Whether the activity garners the predominant attention of a patron or patrons of the facility.

7. “Performance by a disc jockey” to mean the playing of recorded music, the mixing of audio or the adding of sound, video and lighting effects by a person or group of persons to a patron or group of patrons. For the purposes of this subsection and subparagraph (9) of paragraph (a) of subsection 2 of NRS 368A.090, the Commission will interpret the term “recorded music” to include, without limitation, music on a cassette tape, compact disc, phonograph album, digital media or video tape or disc, or on live television.

8. “Service charge or any other fee or charge” to mean an amount imposed and received by, or on behalf of, a taxpayer without the payment of which a patron could not obtain admission to a facility where live entertainment is provided. The term does not include an amount imposed and retained by a ticket broker or a ticket service provider.

9. “Shopping mall” to include any area or premises where multiple vendors assemble for the primary purpose of selling goods or services, regardless of whether consideration is collected for the right or privilege of entering that area or those premises and regardless of whether the vendors gather indoors or outdoors.

10. “Ticket” to mean a physical or electronic document that provides a patron admission to a facility where live entertainment is provided.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R196-05, 2-23-2006; R062-15, 11-2-2016)

NAC 368A.110 Taxpayers: General requirements; specification of provisions applicable to licensed gaming establishments, escorts and escort services. (NRS 360.090, 368A.140)

1. Except as otherwise provided in subsection 3, if a taxpayer intends to provide live entertainment at a facility that is not a licensed gaming establishment, the taxpayer shall register with the Department to collect the tax. The taxpayer shall thereafter collect and remit the tax to the Department in accordance with the provisions of chapter 368A of NRS and NAC 368A.010 to 368A.170, inclusive.

2. Except as otherwise provided in subsection 3, if a taxpayer intends to provide live entertainment at a facility that is a licensed gaming establishment, the taxpayer shall act in accordance with NAC 368A.300 to 368A.540, inclusive.

3. If a taxpayer is an escort or escort service, the taxpayer must:

(a) Register with the Department to collect the tax on live entertainment. The taxpayer shall thereafter collect and remit the tax to the Department in accordance with the provisions chapter 368A of NRS and NAC 368A.010 to 368A.170, inclusive.

(b) Maintain the following records for a period of at least 4 years after the date on which the record is created:

(1) The date on which the service of escorting a person or persons at one or more locations in this State is provided; and

(2) The full amount charged for that service.

(c) Make the records available for inspection by the Department upon demand at reasonable times during regular business hours.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R196-05, 2-23-2006; R062-15, 11-2-2016)

NAC 368A.120 Applicability of tax: Admission charge to facility; exceptions. (NRS 360.090, 368A.140)

1. An admission charge is subject to the tax imposed by chapter 368A of NRS when the admission charge is paid in exchange for admission to a facility where taxable live entertainment is provided, regardless of when the live entertainment actually commences and regardless of whether the patron is present for any portion of the live entertainment.

2. Except as otherwise provided in NRS 368A.200, the tax imposed by chapter 368A of NRS:

(a) Applies to an admission charge for a patron regardless of whether the patron is present for any portion of the live entertainment.

(b) Applies to each sale of an admission that affords a patron the right to enter, or have access to, a facility where live entertainment is provided, unless the taxpayer establishes that the person has received a full refund of the amount paid for the admission.

3. The tax imposed by chapter 368A of NRS does not apply to:

(a) An admission charge paid after the conclusion of the last performance of the taxable live entertainment.

(b) Any amount of consideration paid in addition to the admission charge to have access to a table, seat or chair within a facility where live entertainment is provided.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R062-15, 11-2-2016)

NAC 368A.130 Determination of maximum occupancy by Department; presumption when maximum occupancy not designated on permit; rebuttal of presumption by taxpayer. (NRS 360.090, 368A.140)

1. For the purposes of subsection 4 of NRS 368A.020, the Department shall determine the maximum occupancy of a facility where live entertainment is provided in accordance with the provisions of paragraph (b) of subsection 5 of NRS 368A.200.

2. For the purposes of subsection 1 and paragraph (b) of subsection 5 of NRS 368A.200, if there is no governmental permit designating the maximum occupancy of a facility where live entertainment is provided, the Department must presume that the actual seating capacity of the facility is at least 200 persons and less than 7,500 persons. To rebut this presumption, the taxpayer must establish, to the reasonable satisfaction of the Department, that the actual seating capacity of the facility is less than 200 persons or at least 7,500 persons. In determining whether the taxpayer has successfully rebutted the presumption, the Department shall consider all evidence provided by the taxpayer, including, without limitation, evidence of actual attendance, the number of admissions sold or offered for sale, the square footage of the facility, the physical needs or requirements of the patrons in relation to the nature of the live entertainment provided and any other evidence tending to establish the actual seating capacity of the facility.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R196-05, 2-23-2006; R062-15, 11-2-2016)

NAC 368A.140 Computation of amount of tax due: Generally. (NRS 360.090, 368A.140)

1. Pursuant to the provisions of subsection 1 of NRS 368A.200:

(a) If the taxable event is an admission to a facility in this State where live entertainment is provided, the Department shall apply the tax rate to the total admission charge less the sum of any tax imposed by the United States upon or with respect to an admission charge to live entertainment, whether imposed upon the taxpayer or the patron.

(b) If the taxable event is the live entertainment provided by an escort who is escorting a person or persons at one or more locations in this State, the Department shall apply the tax rate to the total amount, expressed in terms of money, of consideration paid for the service of escorting the person or persons at one or more locations in this State.

2. The tax must be paid on all taxable admission charges and amounts paid for the service of escorting a person or persons at one or more locations in this State, regardless of whether the taxable amounts are paid in cash or through an extension of credit. Any required minimum purchase of food, beverages or merchandise must be accounted for solely as part of the total amount paid for the admission charge.

3. The amount of any fees imposed in connection with the use of credit cards or debit cards which is excluded from taxation pursuant to paragraph (c) of subsection 2 of NRS 368A.200 must be determined from the actual amount imposed, collected and retained by the independent financial institution and not from an estimate of that amount.

4. The tax must be paid on all the proceeds received by a taxpayer, in exchange for the sale of an admission to a facility, including, without limitation, the proceeds of any service charge or other fee or charge, other than a fee excluded from the tax pursuant to paragraph (c) of subsection 2 of NRS 368A.200 that is imposed and received by, or on behalf of, the taxpayer.

5. The tax on any taxable admission to a facility where live entertainment is provided which is sold as a component of a package must be computed in accordance with the following provisions:

(a) Except as otherwise provided in paragraph (b):

(1) The average retail value of the admission must be prorated against the average retail value of all the components of the package, and the tax must be paid on the sum obtained by multiplying the resulting prorated fraction by the actual price paid for the package.

(2) Any value advertised to the public as the retail value of a component of a package is rebuttably presumed to constitute the actual retail value of that component.

(3) If no average retail value can be established for a component of a package, the cost of the component to the taxpayer must be used to carry out subparagraph (1).

(b) This subsection does not prohibit a taxpayer from paying, at the option of the taxpayer, the tax on the full retail value of the admission component of a package.

6. The amount of any charge or fee excluded from the tax pursuant to subsection 3 or 4 of NRS 368A.020 must be determined from the actual amount imposed, collected and retained by the taxpayer, and not from an estimate of that amount.

7. As used in this section, “package” means any aggregation of rights to rooms, food, refreshments, merchandise, entertainment, services or other items which is advertised to the public as a single unit and sold for a single price.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R062-15, 11-2-2016)

NAC 368A.143 Computation of amount of tax due: License or rental fee paid for luxury suite, box or similar product. (NRS 360.090, 368A.140)

1. For the purposes of subsection 4 of NRS 368A.020:

(a) If a license or rental fee paid for a luxury suite, box or similar product at a facility with a maximum occupancy of at least 7,500 persons includes the admission of a certain number of patrons to live entertainment provided at the facility, the amount of the proceeds from the license or rental fee that is subject to the tax imposed by chapter 368A of NRS is equal to the lowest priced admission charge for the live entertainment event at the facility multiplied by the number of admissions to the live entertainment event included in the license or rental fee, regardless of the number of admissions utilized for the live entertainment event. Upon request, a taxpayer shall provide to the Department records to support the lowest priced admission charge for the live entertainment event at the facility and the number of admissions to the live entertainment event included in the license or rental fee.

(b) If a license or rental fee is paid for a luxury suite, box or similar product at a facility with a maximum occupancy of less than 7,500 persons, the entire amount of the proceeds from the license or rental fee is subject to the tax imposed by chapter 368A of NRS.

2. For the purposes of this section and subsection 4 of NRS 368A.020, the Commission will interpret the term “lowest priced admission charge” to mean the lowest price available to the general public for an admission to the facility where the live entertainment is provided.

(Added to NAC by Tax Comm’n by R062-15, eff. 11-2-2016)

NAC 368A.147 Collection of tax due. (NRS 360.090, 368A.140) The tax imposed by chapter 368A of NRS must be collected by:

1. A taxpayer from a ticket broker or patron at the time of the sale of an admission to a facility where taxable live entertainment is provided.

2. A ticket service provider from a patron at the time of the sale of an admission to a facility where taxable live entertainment is provided.

(Added to NAC by Tax Comm’n by R062-15, eff. 11-2-2016)

NAC 368A.150 Scope of exemption for nonprofit organizations; assessment and computation of tax by Department. (NRS 360.090, 368A.140)

1. For the purposes of paragraph (d) of subsection 4 of NRS 368A.200, live entertainment is provided by or entirely for the benefit of a nonprofit organization if the proceeds of the admission charges to the facility where the live entertainment is provided become the property of the nonprofit organization. The proceeds of the admission charges do not become the property of a person other than a nonprofit organization as long as the person retains not more of the proceeds than is necessary to cover the direct, supportable costs of hosting, promoting or sponsoring the event at which the live entertainment is provided.

2. Except as otherwise provided in chapter 368A of NRS and NAC 368A.010 to 368A.170, inclusive, unless live entertainment is provided by or entirely for the benefit of a nonprofit organization and the number of tickets to that live entertainment which are offered for sale or other distribution to patrons is less than 7,500, the Department shall assess and compute the excise tax in accordance with NAC 368A.140.

3. For the purpose of determining the number of tickets to live entertainment which are offered for sale or distribution to patrons pursuant to paragraph (a) of subsection 2 of NRS 368A.200 and paragraph (d) of subsection 4 of that section:

(a) A single ticket providing admission to more than one live entertainment event constitutes a ticket for each such event.

(b) A live entertainment event that is part of an offering of multiple live entertainment events and that requires a separate ticket for admission constitutes a separate live entertainment event.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R062-15, 11-2-2016)

NAC 368A.160 Documentation required for exemption of nonprofit organization. (NRS 360.090, 368A.140)

1. Any person who claims to be a nonprofit organization exempt from the provisions of NRS 368A.200, or any person who claims to provide live entertainment entirely for the benefit of such a nonprofit organization, has the burden of proving by a preponderance of the evidence that the person is exempt from the tax imposed by chapter 368A of NRS.

2. Any person who claims to be a nonprofit organization exempt from the provisions of NRS 368A.200, or any person who claims to provide live entertainment entirely for the benefit of such a nonprofit organization, shall, upon the request of the Department, provide to the Department:

(a) Such records as the Department deems necessary to demonstrate that the person who claims to be a nonprofit organization or the organization for whose benefit the person provided live entertainment:

(1) Meets the criteria to qualify as a religious organization pursuant to 26 U.S.C. § 501(c) and any federal regulations relating thereto;

(2) Has qualified as a tax-exempt organization pursuant to 26 U.S.C. § 501(c); or

(3) Is organized or existing under the provisions of chapter 82 of NRS.

(b) Documentation to support the number of tickets for admission to the live entertainment offered for sale or other distribution to patrons, either directly or indirectly through a partner, subsidiary, client, affiliate or other collaborator.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R196-05, 2-23-2006; R062-15, 11-2-2016)

NAC 368A.170 Over-collection of tax: Duties of taxpayer and Department; refund to patron; payment of over-collection to Department under certain circumstances. (NRS 360.090, 368A.140)

1. As used in this section, “over-collection” means any amount collected as a tax on live entertainment that is exempt from taxation pursuant to subsection 4 of NRS 368A.200, or any amount in excess of the amount of the applicable tax as computed in accordance with subsections 1, 2 and 3 of NRS 368A.200.

2. Any over-collection must, if possible, be refunded by the taxpayer to the patron from whom it was collected.

3. A taxpayer shall:

(a) Use all practical methods to determine any amount to be refunded pursuant to subsection 2 and the name and address of the person to whom the refund is to be made.

(b) Within 60 days after reporting to the Department that a refund must be made, make an accounting to the Department of all refunds paid. The accounting must be accompanied by any supporting documents required by the Department.

4. If a taxpayer is unable for any reason to refund an over-collection, the taxpayer shall pay the over-collection to the Department.

5. If an audit of a taxpayer reveals the existence of an over-collection, the Department shall:

(a) Credit the over-collection toward any deficiency that results from the audit, if the taxpayer furnishes the Department with satisfactory evidence that the taxpayer has refunded the over-collection as required by subsection 2.

(b) Within 60 days after receiving notice from the Department that a refund must be made, seek an accounting of all refunds paid. The accounting must be accompanied by any supporting documents required by the Department.

(Added to NAC by Tax Comm’n by R212-03, eff. 12-4-2003; A by R062-15, 11-2-2016)

ADMINISTRATION OF TAX BY NEVADA GAMING CONTROL BOARD

NAC 368A.300 Definitions. (NRS 368A.140) As used in NAC 368A.300 to 368A.540, inclusive, unless the context otherwise requires, the words and terms defined in NAC 368A.310 to 368A.395, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.310 “Board” defined. (NRS 368A.140) “Board” means the Nevada Gaming Control Board.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.320 “Chair” defined. (NRS 368A.140) “Chair” means the Chair of the Board or a person designated by the Chair.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.340 “Nonprofit organization” defined. (NRS 368A.140) “Nonprofit organization” means any organization described in paragraph (a) of subsection 2 of NRS 368A.200 or paragraph (d) of subsection 4 of NRS 368A.200.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.350 “Nonrestricted license” defined. (NRS 368A.140) “Nonrestricted license” has the meaning ascribed to it in NRS 463.0177.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.355 “Operator” defined. (NRS 368A.140) “Operator” has the meaning ascribed to it in paragraph (c) of subsection 5 of NRS 368A.200.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.360 “Package” defined. (NRS 368A.140) “Package” means any aggregation of rights to rooms, food, beverages, merchandise, entertainment, services or other items which is advertised to the public as a single unit and sold for a single price.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.370 “Patron” defined. (NRS 368A.140) “Patron” means a person who gains access to a facility where live entertainment is provided and who neither solicits nor receives, from any source, any payment, reimbursement, remuneration or other form of consideration for providing live entertainment at the facility.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.380 “Restricted license” defined. (NRS 368A.140) “Restricted license” has the meaning ascribed to it in NRS 463.0189.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.390 “Taxpayer” defined. (NRS 368A.140) “Taxpayer” means any person described in subsection 1 of NRS 368A.110.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.393 “Ticket broker” defined. (NRS 368A.140) “Ticket broker” means a person who is not affiliated with a taxpayer or an operator and who purchases an admission to a facility where live entertainment is provided from the taxpayer or operator for the purpose of resale to a patron.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.395 “Ticket service provider” defined. (NRS 368A.140) “Ticket service provider” means a person who, pursuant to an agreement with a taxpayer or an operator and on behalf of the taxpayer or operator, sells to a patron an admission to a facility where live entertainment is provided.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.400 Interpretation of certain terms. (NRS 368A.140) For the purposes of chapter 368A of NRS and NAC 368A.300 to 368A.540, inclusive, the Board shall interpret the term:

1. “Admission” to mean the right or privilege to enter, or have access to, a facility where live entertainment is provided.

2. “Boxing contest or exhibition” to have the meaning ascribed in NRS 467.0107 to the term “unarmed combat.”

3. “Complimentary” to mean the granting of admission to a facility where live entertainment is provided without the receipt of any form of payment or consideration by the taxpayer or operator from any person who is not affiliated with the taxpayer or operator.

5. “Membership fee” to mean an amount paid for a membership that provides admission to a facility where live entertainment is provided.

6. “Performance” to mean the presentation of an activity described in subparagraphs (1) to (8), inclusive, of paragraph (a) of subsection 2 of NRS 368A.090 that is the primary reason for which a patron or patrons paid an admission charge to enter, or have access to, the facility. In determining whether an activity constitutes a performance pursuant to this subsection, the Board may consider, without limitation, the following factors:

(a) Whether the activity is advertised, promoted or otherwise marketed; and

(b) Whether the activity garners the predominant attention of a patron or patrons of the facility.

7. “Performance by a disc jockey” to mean the playing of recorded music, the mixing of audio or the adding of sound, video and lighting effects by a person or group of persons to a patron or group of patrons. For the purposes of this subsection and subparagraph (9) of paragraph (a) of subsection 2 of NRS 368A.090, the Board shall interpret the term “recorded music” to include, without limitation, music on a cassette tape, compact disc, phonograph album, digital media or video tape or disc, or on live television.

8. “Service charge or any other fee or charge” to mean an amount imposed and received by, or on behalf of, a taxpayer or operator without the payment of which a patron could not obtain admission to a facility where live entertainment is provided. The term does not include an amount imposed and retained by a ticket broker or ticket service provider.

9. “Ticket” to mean a physical or electronic record that grants a patron admission to a facility where live entertainment is provided.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.405 Advisory opinion of Board: Contents of request by taxpayer; applicability; publication authorized; availability of other remedies. (NRS 368A.140)

1. A taxpayer may request an advisory opinion from the Board concerning any matter relating to the tax imposed by NRS 368A.200.

2. A request for an advisory opinion must be in writing and contain the following:

(a) A statement that the taxpayer is requesting an advisory opinion.

(b) Where applicable, the name of the facility or facilities where the live entertainment that is the subject of the advisory opinion is, or will be, provided.

(d) A clear, simple statement of the issue or question to be resolved.

(e) A statement of all statutes, regulations or other authority which the taxpayer believes may be relevant to the disposition of the request.

(f) A statement of the taxpayer’s opinion of the proper disposition of the request, with supporting arguments and authorities.

3. After considering a request submitted pursuant to this section, the Board may issue a written advisory opinion on the subject or subjects contained in the request.

4. An advisory opinion issued pursuant to this section applies only to the taxpayer to whom it is issued and to the factual situation presented in the request, unless the advisory opinion explicitly states otherwise.

5. The Board, in its sole discretion, may publish an advisory opinion issued pursuant to this section. If the Board publishes an advisory opinion, the Board must publish only a version of the advisory opinion in which all references to the name of the taxpayer and the facility or facilities that are the subject of the advisory opinion have been removed.

6. The provisions of this section do not preclude a taxpayer from pursuing other remedies available to the taxpayer, including, without limitation, petitioning the Commission for a ruling pursuant to Regulation 2A of the Nevada Gaming Commission.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.410 Applicability of tax: Admission charge to facility; request for approval of alternative method of determination. (NRS 368A.140)

1. Except as otherwise provided in subsection 2, an admission charge is subject to the tax imposed by chapter 368A of NRS when the admission charge is paid in exchange for admission to a facility where taxable live entertainment is provided.

2. A taxpayer may submit a written request to the Chair for approval of an alternative method of determining whether an admission charge is subject to the tax imposed by chapter 368A of NRS pursuant to this section. The Chair or the designee of the Chair may, in his or her discretion, approve or deny the request.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.420 Applicability of tax: Particular circumstances of admission charge; exceptions. (NRS 368A.140) Except as otherwise provided in NRS 368A.200, the tax imposed by that section:

1. Applies to an admission charge for a patron regardless of whether the patron is present for any portion of the live entertainment.

2. Applies to each sale of an admission that affords a patron the right to enter, or have access to, a facility where live entertainment is provided, unless the taxpayer establishes that the patron has received a full refund of the amount paid for the admission.

3. Does not apply to an admission charge paid after the conclusion of the last performance of the taxable live entertainment.

4. Does not apply to an amount of consideration paid in addition to the admission charge to have access to a table, seat or chair within a facility where live entertainment is provided.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.440 Determination of maximum occupancy by Board; presumption when maximum occupancy not designated on permit; rebuttal of presumption by taxpayer. (NRS 368A.140)

1. For the purposes of subsection 4 of NRS 368A.020, the Board shall determine the maximum occupancy of a facility where live entertainment is provided pursuant to paragraph (b) of subsection 5 of NRS 368A.200.

2. For the purposes of subsection 1 and paragraph (b) of subsection 5 of NRS 368A.200, if there is no governmental permit designating the maximum occupancy of a facility where live entertainment is provided, the Board must presume that the actual seating capacity of the facility is at least 200 persons and less than 7,500 persons. To rebut this presumption, the taxpayer must establish, to the reasonable satisfaction of the Board, that the actual seating capacity of the facility is less than 200 persons or 7,500 persons or more. In determining whether the taxpayer has successfully rebutted the presumption, the Board shall consider all evidence provided by the taxpayer, including, without limitation, evidence of actual attendance, the number of admissions sold or offered for sale, the square footage of the facility, the physical needs or requirements of the patrons in relation to the nature of the live entertainment provided and any other evidence tending to establish the actual seating capacity of the facility.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.450 Computation of amount of tax due: Generally. (NRS 368A.140) For purposes of computing the amount of the tax due pursuant to chapter 368A of NRS:

1. The tax rate must be applied to the total amounts paid for taxable admission charges, excluding the amount of any federal, state or local taxes included in those payments.

2. The tax must be paid on all taxable admission charges, regardless of whether the taxable amounts are paid in cash or through an extension of credit. Any required minimum purchases of food, beverages or merchandise must be accounted for solely as part of the total amount paid for the taxable admission charge.

4. The tax must be paid on all the proceeds received by the taxpayer or the operator, in exchange for the sale of an admission to a facility, including, without limitation, the proceeds of any service charge or other fee or charge, other than a fee excluded from the tax pursuant to paragraph (c) of subsection 2 of NRS 368A.200, that is imposed and received by, or on behalf of, the taxpayer or the operator.

5. The tax on any taxable admission to a facility where live entertainment is provided which is sold as a component of a package must be computed in accordance with the following provisions:

(a) Except as otherwise provided in paragraph (b):

(2) Any value advertised to the public as the retail value of a component of a package is rebuttably presumed to constitute the actual retail value of that component.

(3) If no average retail value can be established for a component of a package, the cost of the component to the taxpayer must be used to carry out subparagraph (1).

(b) This subsection does not prohibit a taxpayer from paying, at the option of the taxpayer, the tax on the full retail value of the admission components of a package.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.453 Computation of amount of tax due: License or rental fee paid for luxury suite, box or similar product; request for approval of alternative method of calculating. (NRS 368A.140)

1. Except as otherwise provided in subsection 2, for the purposes of subsection 4 of NRS 368A.020:

(a) If a license or rental fee paid for a luxury suite, box or similar product at a facility with a maximum occupancy of at least 7,500 persons includes the admission of a certain number of patrons to live entertainment provided at the facility, the amount of the proceeds from the license or rental fee that is subject to the tax imposed by chapter 368A of NRS is equal to the lowest priced admission charge for the live entertainment event at the facility multiplied by the number of admissions to the live entertainment event included in the license or rental fee, regardless of the number of admissions utilized for the live entertainment event. Upon request, a taxpayer shall provide to the Board records to support the lowest priced admission charge for the live entertainment event at the facility and the number of admissions to the live entertainment event included in the license or rental fee.

2. A taxpayer may submit a written request to the Chair for approval of an alternative method of calculating the amount of the proceeds from a license or rental fee paid for a luxury suite, box or similar product at a facility that is subject to the tax imposed by chapter 368A of NRS. The Chair or the designee of the Chair may, in his or her discretion, approve or deny the request.

3. For the purposes of this section and subsection 4 of NRS 368A.020, the Board shall interpret the term “lowest priced admission charge” to mean the lowest price available to the general public for an admission to the facility where the live entertainment is provided.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.457 Collection of tax due. (NRS 368A.140) The tax imposed by chapter 368A of NRS must be collected by:

1. A taxpayer or an operator from a ticket broker or patron at the time of the sale of an admission to a facility where live entertainment is provided.

2. A ticket service provider from a patron at the time of the sale of an admission to a facility where live entertainment is provided.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.460 Statement of admission charge shown on ticket or displayed at box office: Required disclosure; payment of tax based on admission charge shown or displayed; receipt substitutes for ticket. (NRS 368A.140)

1. The statement of the admission charge required to be shown or displayed pursuant to subsection 3 of NRS 368A.200 must disclose the amount of the admission charge to be paid by the patron to enter, or have access to, the facility where the live entertainment is provided, excluding the amount of the tax imposed by NRS 368A.200.

2. The taxpayer shall pay the tax imposed by NRS 368A.200 based on the admission charge shown or displayed pursuant to subsection 3 of NRS 368A.200.

3. For the purposes of this section and subsection 3 of NRS 368A.200, if a ticket for admission to facility where live entertainment is provided is not issued to a patron, a receipt documenting the purchase of an admission to such a facility substitutes for a ticket.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.470 Scope of exemption for nonprofit organizations; assessment and computation of tax by Board. (NRS 368A.140)

2. Except as otherwise provided in chapter 368A of NRS and NAC 368A.300 to 368A.540, inclusive, unless live entertainment is provided by or entirely for the benefit of a nonprofit organization and the number of tickets to that live entertainment that are offered for sale or other distribution to patrons is less than 7,500, the Board will assess and compute the excise tax in accordance with NAC 368A.450.

(a) A single ticket providing admission to more than one live entertainment event constitutes a ticket for each such event.

(b) A live entertainment event that is part of an offering of multiple live entertainment events and that requires a separate ticket for admission constitutes a separate live entertainment event.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.480 Documentation required for exemption of nonprofit organization. (NRS 368A.140) Any person who claims to be a nonprofit organization exempt from the provisions of NRS 368A.200, or any person who claims to provide live entertainment entirely for the benefit of such a nonprofit organization, shall, upon the request of the Board:

1. If the person does not claim to be an exempt religious organization, provide to the Board documentation from the Internal Revenue Service deemed appropriate by the Board indicating that the person has qualified as a tax-exempt organization pursuant to 26 U.S.C. § 501(c).

2. If the person claims to be an exempt religious organization, or claims to have provided live entertainment entirely for the benefit of an exempt religious organization, provide to the Board such records as the Board deems necessary to demonstrate that the person or the organization for whose benefit the person provided live entertainment meets the criteria to qualify as a religious organization pursuant to 26 U.S.C. § 501(c) and any federal regulations relating thereto.

3. Provide to the Board documentation to support the number of tickets for admission to live entertainment offered for sale or other distribution to patrons, either directly or indirectly through a partner, subsidiary, client, affiliate or other collaborator.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.490 Responsibilities of persons licensed to conduct gaming at gaming establishment: Payment of tax; maintenance of records; monthly and quarterly reports. (NRS 368A.140, 368A.160)

1. If live entertainment that is taxable under chapter 368A of NRS is provided at a licensed gaming establishment, the person licensed to conduct gaming at that establishment is responsible for the payment of the tax, even if another person is affording that entertainment. In such a case, the person licensed to conduct gaming at that establishment is responsible for collecting the tax from the person affording that entertainment and for remitting the tax based upon the records of the person affording that entertainment.

2. If live entertainment that is taxable under chapter 368A of NRS is provided at a facility within a licensed gaming establishment in connection with any admission that is taxable under chapter 368A of NRS, and the facility is not operated by the person licensed to conduct gaming at that establishment, that person shall:

(a) Keep all pertinent records required by NRS 368A.160, chapter 463 of NRS and Regulation 6 of the Nevada Gaming Commission;

(b) Obtain and keep, or require the operator to obtain and keep, any other pertinent records required by NAC 368A.300 to 368A.540, inclusive; and

(c) Obtain and keep, or require the operator to obtain and keep, any executed contracts relating to the sale or distribution of admissions to the facility that have been entered into by the operator and a ticket service provider.

3. If live entertainment that is taxable under chapter 368A of NRS is provided at a facility within a shopping mall on the premises of a licensed gaming establishment and the shopping mall is owned by the person licensed to conduct gaming at that establishment, or by an affiliate of that person, the person licensed to conduct gaming at that establishment is responsible for the payment of the tax and shall include all taxable amounts in the reports required by NRS 368A.220.

4. If live entertainment that is taxable under chapter 368A of NRS is provided at a licensed gaming establishment, the person licensed to conduct gaming at that establishment is responsible for the preparation of accurate tax reports and compliance with the provisions of chapter 368A of NRS and NAC 368A.300 to 368A.540, inclusive. The lack of a finding by the Board that a reporting policy or procedures of that person does not constitute approval or acceptance of the reporting policy or procedure.

5. Each person that holds:

(a) A nonrestricted license shall file with the Board, on or before the 15th day of each month, a report pursuant to NRS 368A.220, showing the amount of all receipts for the preceding month which are taxable pursuant to chapter 368A of NRS.

(b) A restricted license shall file with the Board, on or before the 15th day of the month following each calendar quarter, a report pursuant to NRS 368A.220, showing the amount of all receipts for the preceding calendar quarter which are taxable pursuant to chapter 368A of NRS.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.500 Records: Taxpayer, operator and ticket service provider required to record all sales; responsibilities of taxpayer; maintenance and availability. (NRS 368A.140, 368A.160)

1. A taxpayer, operator or ticket service provider shall:

(a) Record all sales which are taxable pursuant to chapter 368A of NRS in a manner that reflects the amount of each taxable sale, unless the taxpayer, operator or ticket service provider uses an alternative accounting procedure approved by the Chair. The taxpayer is responsible for:

(1) Ensuring that an operator or a ticket service provider selling admission to a facility where live entertainment is provided which is located on the premises of the taxpayer’s licensed gaming establishment properly records all sales that are taxable pursuant to chapter 368A of NRS and creates and retains all required documentation.

(2) Obtaining and keeping detailed transaction reports of an operator or a ticket service provider selling or distributing taxable admissions to a facility where live entertainment is provided which is located on the premises of the taxpayer’s licensed gaming establishment.

(b) Keep records evidencing any exclusion or exemption from the tax imposed by chapter 368A of NRS of live entertainment provided at the licensed gaming establishment.

2. A taxpayer shall obtain and keep each contract entered into with an operator or a ticket service provider selling or distributing taxable admissions to a facility where live entertainment is provided which is located on the premises of the taxpayer’s licensed gaming establishment.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.510 Procedures for internal control. (NRS 368A.140)

1. Each:

(a) Group I licensee that provides live entertainment shall:

(1) Include in its system of internal control, submitted pursuant to Regulation 6.090 of the Nevada Gaming Commission, a description of the procedures adopted by the licensee to comply with NAC 368A.300 to 368A.540, inclusive; and

(2) Comply with that system of internal control and any minimum standards for internal control for entertainment adopted by the Chair pursuant to Regulation 6.090 of the Nevada Gaming Commission.

(b) Group II licensee that provides live entertainment and each taxpayer that holds a restricted license shall comply with any procedures for internal control for entertainment adopted by the Chair pursuant to Regulation 6.100 of the Nevada Gaming Commission.

Ê Except as otherwise approved in writing by the Chair, a taxpayer shall not carry out any procedures for internal control that deviate from any standards or procedures for internal control for entertainment adopted and published by the Chair.

2. Each group I licensee that provides live entertainment shall direct its independent accountant to perform observations, examinations of documents and inquiries of employees, using any applicable guidelines, checklists and other criteria established by the Chair, to determine compliance with the requirements for entertainment. The independent accountant shall report his or her findings as part of the report required by subsection 9 of Regulation 6.090 of the Nevada Gaming Commission.

3. The internal auditor of each group I licensee that provides live entertainment shall:

(a) Using any applicable guidelines, checklists and other criteria established by the Chair, perform observations, examinations of documents and inquiries of employees to determine compliance with the requirements for entertainment.

(b) Submit to the Board within 120 days after the last day of the first 6 months of the business year of the licensee two copies of a report by the internal auditor summarizing all instances of noncompliance with the requirements for entertainment during the first 6 months of the business year of the licensee and any applicable responses by the management of the licensee, including any work required to be performed during the reporting period and any additional procedures that were performed.

(c) Submit to the Board within 150 days after the end of the business year of the licensee two copies of a report by the internal auditor summarizing all instances of noncompliance with the requirements for entertainment during the final 6 months of the business year of the licensee and any applicable responses by the management of the licensee, including any work required to be performed during the reporting period and any additional procedures that were performed.

4. As used in this section:

(a) “Group I licensee” and “group II licensee” have the meanings ascribed to those terms in Regulation 6.010 of the Nevada Gaming Commission.

(b) “Requirements for entertainment” means the provisions of chapter 368A of NRS, NAC 368A.300 to 368A.540, inclusive, and any minimum standards for internal control for entertainment adopted by the Chair.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004; A by Gaming Comm’n by R104-15, 11-2-2016)

NAC 368A.520 Refund of overpayment of taxes. (NRS 368A.140) The provisions of NRS 463.387 shall be deemed to apply to a claim pursuant to NRS 368A.260 by a taxpayer for the refund of any overpayment of taxes, except that:

1. The claim must be filed within 3 years after the last day of the month following the reporting period for which the overpayment was made; and

2. No interest will be allowed on the overpayment if the Board determines that the overpayment was made intentionally or by reason of carelessness.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.525 Over-collection of tax: Duties of taxpayer and Board; refund to patron; payment of over-collection to Board under certain circumstances. (NRS 368A.140)

1. Any over-collection must, if possible, be refunded by the taxpayer to the patron from whom it was collected.

2. The taxpayer shall:

(a) Use all practical methods to determine any amount to be refunded pursuant to subsection 1 and the name and address of the person to whom the refund is to be made.

(b) Within 60 days after reporting to the Board that a refund must be made, make an accounting to the Board of all refunds paid. The accounting must be accompanied by any supporting documents required by the Board.

3. If a taxpayer is unable for any reason to refund an over-collection, the taxpayer shall pay the over-collection to the Board for deposit in the State Treasury for credit to the State General Fund.

4. If an audit of a taxpayer reveals the existence of an over-collection, the Board shall:

(a) Credit the over-collection toward any deficiency that results from the audit, if the taxpayer furnishes the Board with satisfactory evidence that the taxpayer has refunded the over-collection as required by subsection 1.

(b) Within 60 days after receiving notice from the Board that a refund must be made, seek an accounting of all refunds paid. The accounting must be accompanied by any supporting documents required by the Board.

5. As used in this section, “over-collection” means any amount collected as a tax on live entertainment that is exempt from taxation pursuant to subsection 4 of NRS 368A.200 or any amount in excess of the amount of the applicable tax as computed in accordance with subsections 1, 2 and 3 of NRS 368A.200.

(Added to NAC by Gaming Comm’n by R104-15, eff. 11-2-2016)

NAC 368A.530 Penalty for evasion or nonpayment of tax. (NRS 368A.140) Any taxpayer liable for the payment of the tax imposed by chapter 368A of NRS who willfully fails to report, pay or truthfully account for the tax is liable for a penalty in the amount of the tax evaded or not paid, to be assessed and collected in the same manner as charges, taxes, licenses and penalties are assessed and collected pursuant to chapter 463 of NRS.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)

NAC 368A.540 Violation constitutes unsuitable method of operation. (NRS 368A.140) A violation of any of the provisions of NAC 368A.300 to 368A.540, inclusive, or chapter 368A of NRS constitutes an unsuitable method of operation subjecting a licensed gaming establishment to the suspension or revocation of its gaming license.

(Added to NAC by Gaming Control Bd. by R223-03, 2-25-2004, eff. 1-1-2004)