82
nd Legislative Session _ 2007
1151fa
On the printed bill, delete everything after the enacting clause and insert:
"
Section 1. That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
There is hereby imposed a tax of three percent on the gross receipts from the sale of food.
Section 2. That
§
10-45-1
be amended to read as follows:
10-45-1.
Terms used in this chapter mean:
(1)
"Agricultural purposes," the producing, raising, growing, or harvesting of food or fiber
upon agricultural land, including dairy products, livestock, and crops. The services of
custom harvesters, chemical applicators, fertilizer spreaders, hay grinders, and cultivators
are considered agricultural purposes;
(1A) "Alcoholic beverages," any beverage that is suitable for human consumption and contains
one-half of one percent or more of alcohol by volume;
(2)
"Business," any activity engaged in by any person or caused to be engaged in by such
person with the object of gain, benefit, or advantage, either direct or indirect;
(3)
"Candy," any preparation of sugar, honey, or other natural or artificial sweeteners in
combination with chocolate, fruits, nuts or other ingredients or flavorings in the form of
bars, drops, or pieces. The term, candy, does not include any preparation containing flour
and does not
. No candy may
require refrigeration;
(4)
"Delivery charges," charges by the retailer for preparation and delivery to a location
designated by the purchaser of tangible personal property or services including
transportation, shipping, postage, handling, crating, and packing;
(4A) "Dietary supplement," any product, other than tobacco, intended to supplement the diet
that:
(a) Contains one or more of the following dietary ingredients:
(1) A vitamin;
(2) A mineral;
(3) A herb or other botanical;
(4) An amino acid;
(5) A dietary substance for use by humans to supplement the diet by increasing
the total dietary intake; or
(6) A concentrate, metabolite, constituent, extract, or combination of any
ingredient described in this subsection;
(b) Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form,
or if not intended for ingestion in such a form, is not represented as conventional
food and is not represented for use as a sole item of a meal or of the diet; and
(c) Is required to be labeled as a dietary supplement, identifiable by the supplemental
facts box, found on the label and as required pursuant to 21 C.F.R § 101.36 as of
January 1, 2007;
(5)
"Food" and "food ingredient," any substance, whether in liquid, concentrated, solid,
frozen, dried, or dehydrated form, that is sold for ingestion or chewing by humans and is
consumed for its taste or nutritional value. The term, food, does not include alcoholic
beverages, tobacco,
soft drink, candy, dietary supplement,
or prepared food;
(5A) "Food sold through a vending machine," any food dispensed from a machine or other
mechanical device that accepts payment;
(6)
"Gross receipts," the total amount or consideration, including cash, credit, property, and
services, for which tangible personal property or services are sold, leased, or rented,
valued in money, whether received in money or otherwise, without any deduction for the
following:
(a)
The retailer's cost of the property or service sold;
(b)
The cost of materials used, labor or service cost, interest, losses, all costs of
transportation to the retailer, all taxes imposed on the retailer, and any other
expense of the retailer;
(c)
Except as provided in chapter 10-46A or 10-46B, charges by the retailer for any
services necessary to complete the sale whether or not separately stated, including
delivery charges; and
(d)
The value of exempt tangible personal property whether or not separately stated on
the invoice, billing, or similar document given to the purchaser where taxable and
exempt tangible personal property have been bundled together and sold by the
retailer as a single product or piece of merchandise;
Gross receipts do not include:
(a)
Discounts, including cash, term, or coupons that are not reimbursed by a third party
that are allowed by a retailer and taken by a purchaser on a sale;
(b)
Interest, financing, and carrying charges from credit extended on the sale of
tangible personal property or services, if the amount is separately stated on the
invoice, bill of sale or similar document given to the purchaser; and
(c)
Any taxes legally imposed directly on the consumer that are separately stated on
the invoice, bill of sale, or similar document given to the purchaser;
(7)
"Person," any individual, firm, copartnership, joint adventure, association, limited liability
company, corporation, municipal corporation, estate, trust, business trust, receiver, the
State of South Dakota and its political subdivisions, or any group or combination acting
as a unit;
(8)
"Prepared food," any food sold in a heated state or heated by the seller; two or more food
ingredients mixed or combined by the seller for sale as a single item; or food sold with
eating utensils provided by the seller, including plates, knives, forks, spoons, glasses,
cups, napkins, or straws. A plate does not include a container or packaging used to
transport the food.
Prepared food does not include food
that is only cut, repackaged, or pasteurized by the
seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods
requiring cooking by the consumer as recommended by the Food and Drug
Administration in chapter 3, part 401.11 of its Food Code as of January 1, 2003, so as to
prevent food borne illnesses
sold by a seller whose proper primary NAICS classification
is manufacturing in sector 311, except subsector 3118 (bakeries); food sold in an unheated
state by weight or volume as a single item; or bakery items, including bread, rolls, buns,
biscuits, bagels, croissants, pastries, donuts, danish, cakes, tortes, pies, tarts, muffins, bars,
cookies, or tortillas
;
(9)
"Relief agency," the state, and county, municipality or district thereof, or any agency
engaged in actual relief work;
(10)
"Retail sale" or "sale at retail," any sale, lease, or rental for any purpose other than for
resale, sublease, or subrent;
(11)
"Retailer," any person engaged in the business of selling tangible goods, wares, or
merchandise at retail, or the furnishing of gas, electricity, water, and communication
service, and tickets or admissions to places of amusement and athletic events as provided
in this chapter. The term also includes any person subject to the tax imposed by §§ 10-45-
4 and 10-45-5. The isolated or occasional sale of tangible personal property at retail by
a person who does not hold himself or herself out as engaging in the business of selling
such tangible personal property at retail does not constitute such person a retailer;
(12)
"Sale," any transfer, exchange, or barter, conditional or otherwise, in any manner or by
any means whatsoever, for a consideration;
(13)
"Soft drinks," any nonalcoholic beverages that contain natural or artificial sweeteners. The
term, soft drinks, does not include any beverage that contains milk or milk products, soy,
rice of similar milk substitutes, or greater than fifty percent of vegetable or fruit juice by
volume;
(14)
"Tangible personal property," personal property that can be seen, weighed, measured, felt,
or touched, or that is in any other manner perceptible to the senses. The term includes
electricity, water, gas, steam, and prewritten computer software
;
(15) "Tobacco," any cigarettes, cigars, chewing or pipe tobacco, or any other item that contains
tobacco
.
Section 3. That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
There is hereby imposed a tax of three percent on the privilege of the use of food.
Section 4. That
§
10-46-1
be amended to read as follows:
10-46-1.
Terms, as used in this chapter mean:
(1)
"Business," any activity engaged in by any person or caused to be engaged in by such
person with the object of gain, benefit or advantage either direct or indirect;
(1A) "Alcoholic Beverages," any beverage that is suitable for human consumption and contains
one-half of one percent or more of alcohol by volume;
(2)
"Candy," any preparation of sugar, honey, or other natural or artificial sweeteners in
combination with chocolate, fruits, nuts or other ingredients or flavorings in the form of
bars, drops, or pieces. The term, candy, does not include any preparation containing flour
and does not
. No candy may
require refrigeration;
(3)
"Delivery charges," charges by the retailer for preparation and delivery to a location
designated by the purchaser of tangible personal property or services including
transportation, shipping, postage, handling, crating, and packing;
(3A) "Dietary supplement," any product, other than tobacco, intended to supplement the diet
that:
(a) Contains one or more of the following dietary ingredients:
(1) A vitamin;
(2) A mineral;
(3) A herb or other botanical;
(4) An amino acid;
(5) A dietary substance for use by humans to supplement the diet by increasing
the total dietary intake; or
(6) A concentrate, metabolite, constituent, extract, or combination of any
ingredient described in this subsection;
(b) Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form,
or if not intended for ingestion in such a form, is not represented as conventional
food and is not represented for use as a sole item of a meal or of the diet; and
(c) Is required to be labeled as a dietary supplement, identifiable by the supplemental
facts box, found on the label and as required pursuant to 21 C.F.R § 101.36 as of
January 1, 2007;
(4)
"Fair market value," the price at which a willing seller and willing buyer will trade. Fair
market value shall be determined at the time of purchase. If a public corporation is
supplying tangible personal property that will be used in the performance of a contract,
fair market value shall be determined pursuant to § 5-18-5.1. This definition also applies
to chapter 10-45;
(5)
"Food" and "food ingredient," any substance, whether in liquid, concentrated, solid,
frozen, dried, or dehydrated form, that is sold for ingestion or chewing by humans and is
consumed for its taste or nutritional value. The term, food, does not include alcoholic
beverages, tobacco,
soft drink, candy, dietary supplement,
or prepared food;
(5A) "Food sold through a vending machine," any food dispensed from a machine or other
mechanical device that accepts payment;
(6)
"Included in the measure of tax," the tangible personal property or the service was
purchased from a retailer licensed under chapter 10-45 and that retailer has included the
tax in the amount received from the sale;
(7)
"In this state" or "in the state," within the exterior limits of the State of South Dakota and
includes all territory within such limits owned by or ceded to the United States of
America;
(8)
"Prepared food," any food sold in a heated state or heated by the seller; two or more food
ingredients mixed or combined by the seller for sale as a single item; or food sold with
eating utensils provided by the seller, including plates, knives, forks, spoons, glasses,
cups, napkins, or straws. A plate does not include a container or packaging used to
transport the food.
Prepared food does not include food
that is only cut, repackaged, or pasteurized by the
seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods
requiring cooking by the consumer as recommended by the Food and Drug
Administration in chapter 3, part 401.11 of its Food Code as of January 1, 2003, so as to
prevent food borne illnesses
sold by a seller whose proper primary NAICS classification
is manufacturing in sector 311, except subsector 3118 (bakeries); food sold in an unheated
state by weight or volume as a single item; or bakery items, including bread, rolls, buns,
biscuits, bagels, croissants, pastries, donuts, danish, cakes, tortes, pies, tarts, muffins, bars,
cookies, or tortillas
;
(9)
"Purchase," any transfer, exchange, or barter, conditional or otherwise, in any manner or
by any means whatsoever, for a consideration. A transaction, whereby the possession of
property is transferred but the seller retains the title as security for the payment of the
price, is a purchase;
(10)
"Purchase price," shall have the same meaning as gross receipts defined in subdivision 10-
45-1(4);
(11)
"Retailer," any person performing services in this state or engaged in the business of
selling tangible personal property for use, storage or other consumption within the
meaning of this chapter. However, if in the opinion of the secretary of revenue and
regulation, it is necessary for the efficient administration of this chapter to regard any
salesmen, representatives, truckers, peddlers, or canvassers as agents of the dealers,
distributors, supervisors, employers, or persons under whom they operate or from whom
they obtain the tangible personal property sold by them irrespective of whether they are
making sales on their own behalf or on behalf of such dealers, distributors, supervisors,
employers, or persons, the secretary of revenue and regulation may so regard them and
may regard the dealers, distributors, supervisors, employers, or persons as retailers for
purposes of this chapter;
(12)
"Retailer maintaining a place of business in the state," any retailer having or maintaining
within this state, directly or by a subsidiary, an office, distribution house, sales house,
warehouse, or other place of business, or any agents operating within the state under the
authority of the retailer or its subsidiary, irrespective of whether such place of business
or agent is located here permanently or temporarily or whether such retailer or subsidiary
is admitted to do business within this state pursuant to the laws of the State of South
Dakota granting the rights of foreign corporations to do business in this state;
(13)
"Secretary," the secretary of the Department of Revenue and Regulation or any duly
authorized and appointed assistant, deputies, or agents of the secretary charged with the
administration or enforcement of this chapter;
(14)
"Soft drinks," any nonalcoholic beverages that contain natural or artificial sweeteners. The
term, soft drinks, does not include any beverage that contains milk or milk products, soy,
rice of similar milk substitutes, or greater than fifty percent of vegetable or fruit juice by
volume;
(15)
"Storage," any keeping or retention in this state for use or other consumption in the State
of South Dakota for any purpose except sale in the regular course of business;
(16)
"Tangible personal property," personal property that can be seen, weighed, measured, felt,
or touched, or that is in any other manner perceptible to the senses if furnished or
delivered to consumers or users within this state. The term includes electricity, water, gas,
steam, and prewritten computer software;
(16A) "Tobacco," any cigarettes, cigars, chewing or pipe tobacco, or any other item that contains
tobacco;
(17)
"Use," the exercise of right or power over tangible personal property incidental to the
ownership of that property, except that it does not include the sale of that property in the
regular course of business. Use also includes the use of the types of services, the gross
receipts from the sale of which are to be included in the measure of the tax imposed by
chapter 10-45, and any amendments thereto and the delivery or causing delivery into this
state of tangible personal property intended to advertise products or services or promote
or facilitate sales to South Dakota residents.
"
1187fb
On page
1,
line 6 of the printed bill,
delete "
after July 1, 2007,
"
.
On page
1
,
after line 15, insert:
"
Section 3. Whereas, this Act is necessary for the immediate preservation of the public peace,
health, or safety, an emergency is hereby declared to exist, and this Act shall be in full force and
effect from and after its passage and approval.".
Moved by: Bradford
Second by: Van Etten
Action: Prevailed by voice vote.
MOTION:
DO PASS HB 1187 AS AMENDED
Moved by: Feinstein
Second by: Turbiville
Action: Prevailed by roll call vote.(13-0-2-0)
Voting Yes: Bradford, Faehn, Feinstein, Lust, Noem, Novstrup (Al), Olson (Ryan), Thompson,
Turbiville, Van Etten, Weems, Wick, Dykstra
Excused: Juhnke, Peters
MOTION:
TO AMEND TITLE OF HB 1187
1187fta
On page
1,
line 2 of the printed bill,
after "
military
"
insert "and to declare an emergency".
Moved by: Van Etten
Second by: Weems
Action: Prevailed by voice vote.
MOTION:
PLACE HB 1187 ON CONSENT CALENDAR
Moved by: Feinstein
Action: Was not acted on.
HB 1211: revise the deadline for owner-occupants to file the certificate requesting
an owner-occupied classification.
Presented by: Representative Jeffrey Haverly
MOTION:
DEFER HB 1211 TO THE 41ST LEGISLATIVE DAY
Moved by: Weems
Second by: Turbiville
Action: Prevailed by roll call vote.(12-1-2-0)
Voting Yes: Faehn, Feinstein, Lust, Noem, Novstrup (Al), Olson (Ryan), Thompson, Turbiville,
Van Etten, Weems, Wick, Dykstra
Voting No: Bradford
Excused: Juhnke, Peters
MOTION:
ADJOURN
Moved by: Turbiville
Second by: Weems
Action: Prevailed by voice vote.
Linda Daugaard
____________________________
Committee SecretaryJoel D. Dykstra, Chair