FOR AN ACT ENTITLED, An Act to to lower the state sales and use tax on certain food items if certain economic conditions occur.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That chapter 10-45 be amended by adding thereto a NEW SECTION to read as follows:

    There is imposed a tax of three and one-half percent on gross receipts from the sale of food as defined in § 10-45-1. This section is effective on October first following any state fiscal year when the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E is at least six percent more than the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E in the prior state fiscal year and is at least three percent more than the index factor as defined in § 10-13-38. The tax imposed by this section shall be lowered by an additional one-half percent on October first following a subsequent state fiscal year when the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E is at least six percent more than the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E in the prior state fiscal year and is at

least three percent more than the index factor as defined in § 10-13-38.
    Section 2. That chapter 10-46 be amended by adding thereto a NEW SECTION to read as follows:

    There is imposed a tax of three and one-half percent on the privilege of the use of food as defined in § 10-46-1. This section is effective on October first following any state fiscal year when the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E is at least six percent more than the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E in the prior state fiscal year and is at least three percent more than the index factor as defined in § 10-13-38. The tax imposed by this section shall be lowered by an additional one-half percent on October first following a subsequent state fiscal year when the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E is at least six percent more than the total revenue collected pursuant to chapters 10-45, 10-46, and 10-46E in the prior state fiscal year and is at least three percent more than the index factor as defined in § 10-13-38.
    Section 3. 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, any product transferred electronically, or services including transportation, shipping, postage, handling, crating, and packing. The term does not include postage for direct mail;

            (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 any alcoholic beverages beverage, tobacco, soft drink, candy, dietary supplement, food sold through a vending machine, or prepared food;

            (5A)    "Food sold through a vending machine," any food dispensed from a machine or other mechanical device that accepts payment;

            (6)    Repealed by SL 2007, ch 56, § 1.

            (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;

            (8A)    "Product transferred electronically," any product obtained by the purchaser by means

other than tangible storage media. A product transferred electronically does not include any intangible such as a patent, stock, bond, goodwill, trademark, franchise, or copyright.;

            (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, and the sale at retail of products transferred electronically. 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 or any product transferred electronically at retail by a person who does not hold himself or herself out as engaging in the business of selling such tangible personal property or products transferred electronically 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 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, any product transferred electronically, or services including transportation, shipping, postage, handling, crating, and packing. The term does not include postage for direct mail;

            (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, 2011;

            (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 or any product transferred electronically that will be used in the performance of a contract, fair market value shall be determined pursuant to § 5-18B-7. 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 any alcoholic beverages beverage, tobacco, soft drink, candy, dietary supplement, food sold through a vending machine, 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, any product

transferred electronically, 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;

            (8A)    "Product transferred electronically," any product obtained by the purchaser by means other than tangible storage media. A product transferred electronically does not include any intangible such as a patent, stock, bond, goodwill, trademark, franchise, or copyright.;

            (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;

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            (10)    "Purchase price," shall have the same meaning as gross receipts defined in chapter 10-45;

            (11)    "Retailer," any person performing services in this state or engaged in the business of selling tangible personal property or products transferred electronically for use, storage or other consumption within the meaning of this chapter. However, if in the opinion of the secretary of revenue, 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 or any product transferred electronically 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 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 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 or any product transferred electronically 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 the delivery or causing delivery into this state of tangible personal property or any product transferred electronically intended to advertise any product or service or promote or facilitate any sale to South Dakota residents.