CHAPTER 58
(HB 1042)
Bundling defined for sales and use tax.
ENTITLED, An Act to
revise the definition of bundling for sales and use tax purposes.
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:
Except for the provisions of
§
10-45-1.7, the tax imposed by this chapter applies to the entire
gross receipts resulting from the sale of bundled transactions.
Section
2.
That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
For the purposes of this chapter, the term, bundled transaction, means the retail sale of two or
more distinct and identifiable products sold for one nonitemized price.
Section
3.
That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
For the purposes of this chapter, the phrase, distinct and identifiable products, does not include:
(1) Packaging, including containers, boxes, sacks, bags, bottles, wrapping, labels, tags, and
instruction guides, that accompany the retail sale of the products and are incidental or
immaterial to the retail sale;
(2) A product provided free of charge with the required purchase of another product, if the
sales price of the product purchased does not vary depending on the inclusion of the
product provided free of charge; or
(3) Items included in gross receipts.
Section
4.
That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
For the purposes of this chapter, the phrase, one nonitemized price, does not include a price
that is separately identified by product on binding sales or other supporting sales-related
documentation made available to the customer in paper or electronic form including an invoice,
bill of sale, receipt, contract, service agreement, lease agreement, periodic notice of rates and
services, rate card, or price list.
Section
5.
That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
For the purposes of this chapter, the term, bundled transaction, does not include:
(1) A transaction that includes the retail sale of real property or services to real property;
(2) A transaction that includes the retail sale of any products in which the gross receipts
varies, or is negotiable, based on the selection by the purchaser of the products included
in the transaction;
(3) A transaction that includes the retail sale of tangible personal property and a service
where the tangible personal property is essential to the use of the service, and is
provided exclusively in connection with the service, and the true object of the
transaction is the service;
(4) A transaction that includes the retail sale of services where one service is provided that
is essential to the use or receipt of a second service and the first service is provided
exclusively in connection with the second service and the true object of the transaction
is the second service;
(5) A transaction that includes the retail sale of taxable products and nontaxable products
and the purchase price or gross receipts of the taxable products is de minimis; or
(6) A transaction that includes the retail sale of exempt tangible personal property and
taxable tangible personal property where:
(a) The transaction includes food and food ingredients, drugs, durable medical
equipment, mobility enhancing equipment, or prosthetic devices all as defined
in chapter 10-45, or over-the-counter drugs or medical supplies; and
(b) The retailer's purchase price or gross receipts of the taxable tangible personal
property is fifty percent or less of the total purchase price or gross receipts of the
bundled tangible personal property. No retailer may use a combination of the
purchase price and gross receipts of the tangible personal property when making
the fifty percent determination for a transaction.
Section
6.
That chapter
10-45
be amended by adding thereto a NEW SECTION to read as
follows:
For the purposes of section 5 of this Act, the term, de minimis, means the retailer's purchase
price or gross receipts of the taxable products is ten percent or less of the total purchase price or
gross receipts of the bundled products. A retailer shall use either the purchase price or the gross
receipts of the products to determine if the taxable products are de minimis. No retailer may use
a combination of the purchase price and gross receipts of the products to determine if the taxable
products are de minimis. A retailer shall use the full term of a service contract to determine if the
taxable products are de minimis.
Signed January 30, 2007