CHAPTER 64:44:01
ADMINISTRATION OF PROGRAM
Section
64:44:01:01 Repealed.
64:44:01:02 Minimum price on cigarettes.
64:44:01:03 Repealed.
64:44:01:04 Thirty-day credit.
64:44:01:05 Determination of credit period.
64:44:01:06 Extension of credit period.
64:44:01:07 Basis for extending credit period.
64:44:01:08 Repealed.
64:44:01:09 Check as payment.
64:44:01:10 Bad checks.
64:44:01:11 Retail delinquency.
64:44:01:12 Granting of financial assistance to licensees.
64:44:01:13 Definition of retail establishment.
64:44:01:14 Deduction.
64:44:01:01. Cigarette wholesaler defined. Repealed.
Source:
SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21
SDR 219, effective July 1, 1995; repealed, 34 SDR 93, effective October 17,
2007.
64:44:01:02. Minimum
price on cigarettes. The distributor shall apply the following formulas to
establish the minimum price on all brands of cigarettes the distributor sells
in this state:
(1) The basic cost to the
distributor is the manufacturer's invoice price, less available manufacturer's
discounts, plus the state cigarette excise tax;
(2) The distributor may not
sell cigarettes for less than four percent above their basic cost if cigarettes
are sold to retailers at the distributor's warehouse;
(3) If cigarettes are
delivered to retailers, an additional one and one-half percent for cartage
shall be added to the basic cost.
Source:
SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134,
effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214,
effective June 21, 2012.
General
Authority: SDCL 10-50-60, 37-10-26.
Law
Implemented: SDCL 37-10-5, 37-10-10.
64:44:01:03. Retailers -- Minimum price.Repealed.
Source: SL 1975, ch 16, § 1; repealed, 13 SDR 129, 13 SDR 134, effective July 1, 1987.
64:44:01:04. Thirty-day credit. No licensed distributor or wholesaler of cigarettes may, directly or indirectly or through a subsidiary or affiliate corporation or by any officer, director, stockholder, employee, or partner of a subsidiary or affiliate corporation, give or advance money or credit to a retailer; that is, no sale or delivery of cigarettes may be made to a retailer except on terms which require payment by the purchaser within 30 days. Every delivery of cigarettes shall be accompanied by an invoice of sale or a delivery slip giving the date of delivery of the cigarettes.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 144, effective July 1, 1987.
General Authority: SDCL 37-10-26.
64:44:01:05. Determination of credit period. The first day of a credit period is the day following the date of invoice, and the 30-day period expires at midnight the thirtieth day following the date of invoice, after which payment is delinquent. However, no remittance made by mail is considered delinquent if it is affirmatively established that the envelope in which the remittance was transmitted bears the postmark of the thirtieth day following the date of invoice.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
64:44:01:06. Extension of credit period. If all licensed wholesalers and distributors doing business in the same trade area are not open for business as that term is generally and usually construed for any period of time of seven consecutive days or more, the provisions of § 64:44:01:05 do not apply. The period of time for making final payment of the accrued obligations of a retailer shall be extended for the same period of time as that for which all licensed wholesalers and distributors have not been in business.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
64:44:01:07. Basis for extending credit period. Section 64:44:01:06 is based on the finding that extended closing by licensed wholesalers and distributors results in and necessitates increased purchases by retailers beyond their normal needs and an extension of credit in excess of the 30-day period is necessary for the orderly transaction of the business of such retail dealers.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
64:44:01:08. Municipal exemption.Repealed.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 30 SDR 89, effective December 10, 2003.
64:44:01:09. Check as payment. A correctly dated check which is payable at the bank upon presentation at the next banking day is considered cash within the meaning of this article.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
64:44:01:10. Bad checks. If a check is returned marked "insufficient funds" and is not made good by the retailer within 10 days, no licensed wholesaler or distributor may sell to the retail licensee for either cash or check until the returned check is made good.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
64:44:01:11. Retail delinquency. If a retail dealer becomes delinquent in the payment of any account due for merchandise purchased, the licensed wholesaler or distributor shall report that fact within 24 hours to the department. A retail dealer who becomes delinquent may not purchase merchandise for cash or otherwise from a licensed wholesaler or distributor until the delinquent account has been paid in full. The delinquent account must be cleared from the records of the department before a licensed wholesaler or distributor is permitted to sell merchandise to the retail dealer.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
Law Implemented: SDCL 37-10-2, 37-10-3, 37-10-29 to 37-10-35.
64:44:01:12. Granting of financial assistance to licensees. An extension or acceptance of credit in violation of this chapter is considered by the secretary as receiving financial assistance. The license of any wholesaler or distributor who violates this chapter shall be suspended or revoked, as determined by the secretary. In addition, any wholesaler or distributor who accepts postdated checks, notes, or memoranda or who participates in any scheme, trick, or device to assist a retail dealer in the violation of this chapter is considered to be in violation of §§ 64:44:01:04 to 64:44:01:12, inclusive.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987.
General Authority: SDCL 37-10-26.
Law Implemented: SDCL 37-10-2, 37-10-3, 37-10-29 to 37-10-35.
64:44:01:13. Definition
of retail establishment. The term, retail establishment, as used in SDCL 10-50-105 means any tobacco retailer, distributor, wholesaler, or manufacturer that allows the use of a roll-your-own machine to produce cigarettes, regardless of whether a fee is charged for the use of the machine. The term also includes any establishment that allows the use of a roll-your-own machine for any type of fee, regardless of whether tobacco products are sold at the establishment.
Source:
38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(5)(6), 37-10-26(3).
Law
Implemented: SDCL 10-50-105.
64:44:01:14. Deduction.
The wholesale purchase price of any tobacco product that is typically subject
to the wholesale tax on tobacco products pursuant to SDCL 10-50-61 may be deducted from the Monthly OTP tax return form if the tobacco product is subsequently used to manufacture cigarettes in a roll-your-own machine at a retail establishment. This provision only applies if the cigarettes produced were taxed pursuant to SDCL 10-50-3 and payment of the tax has been evidenced by the affixing of tax stamps pursuant to SDCL 10-50-4.
Source:
38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(5)(6), 37-10-26(3).
Law
Implemented: SDCL 10-50-105.
CHAPTER 64:44:02
CIGARETTE EXCISE TAX STAMP CREDITS
Section
64:44:02:01 Cigarette distributor tax stamp replacement credit.
64:44:02:02 Application for replacement credit.
64:44:02:03 Damaged and unfit cigarette packages.
64:44:02:04 Wholesalers may receive replacements.
64:44:02:05 Forms to be furnished department by distributors.
64:44:02:06 Cash refunds.
64:44:02:07 Application of cigarette tax stamp credit memos.
64:44:02:08 Credit memos to be applied against purchase price.
64:44:02:09 Credit memo application forms furnished by secretary.
64:44:02:01. Cigarette
distributor tax stamp replacement credit. The secretary shall replace
cigarette excise tax stamps which have been affixed by a licensed distributor
to cigarette packages which are being returned to the manufacturer because the
packages or the contents of the packages have become unfit for sale.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(1).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:02. Application
for replacement credit. A distributor may file an application for
replacement credit for the tax stamps by stating the brands, number of packages
per size, the stamp denominations, and the number of each type of stamp affixed
to the packages returned to the manufacturer.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(1).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:03. Damaged
and unfit cigarette packages. Cigarette packages which are unfit for sale
and which are unreturnable to the manufacturer shall
be inspected by an agent of the secretary, who may authorize the destruction of
both the contents of the package and the stamps affixed to the package.
Destruction shall take place in the agent's presence. The agent shall sign and
issue an audit destruction report setting forth the type, number, and
denomination of the tax stamps, the size and number of packages of cigarettes
destroyed, and the facts of destruction. A copy of the audit destruction report
shall be furnished to the distributor, and the original shall be filed with the
director of the property and special taxes division of the department.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(1).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:04. Wholesalers
may receive replacements. Any wholesaler who has cigarette packages which
have become unfit for sale may receive replacements for tax stamped cigarette
packages of the same brand, size, and number with the consent of the distributor
from whom the cigarettes were purchased.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(1).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:05. Forms to be furnished department by distributors. If the distributor returns the cigarette packages directly to the manufacturer, the distributor shall furnish the secretary with a certified copy of the manufacturer's credit and destruction memo along with the application for a tax stamp credit. If the cigarette packages and the stamps affixed to them are audited and destroyed by a representative of the department, a signed copy of the audit destruction report must be attached to the application for the tax stamp credit.
Source: 1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-50-60.
Law Implemented: SDCL 10-50-20.1.
64:44:02:06. Cash
refunds. Any cash refund for unused cigarette excise tax stamps may only be
made when the distributor discontinues business or if the secretary determines
the distributor will not use the cigarette excise tax stamps within the next
twelve months. No cash refund may be made until the secretary has had an
opportunity to audit the records of the distributor and is satisfied that no
further tax is due. Before the refund is issued all unused cigarette excise tax
stamps must be returned to the department.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(2).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:07. Application
of cigarette tax stamp credit memos. Distributors granted cigarette excise
tax stamp credit shall be issued a credit memo by the department stating the
amount of credit authorized for the application claim. The distributor, upon receipt
of the authorized credit memo, shall present the credit memo at the next
request for tax stamps to the property and special taxes division of the
department. The secretary shall include the total authorized credit memo amount
when computing the charges for the purchase of cigarette excise tax stamps by
the distributor.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(2).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:08. Credit
memos to be applied against purchase price. A credit memo presented by a
distributor in payment for tax stamps shall be applied against the purchase
price.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(2).
Law
Implemented: SDCL 10-50-20.1.
64:44:02:09. Credit
memo application forms furnished by secretary. Application forms for
cigarette excise tax stamp credits and authorized credit memos required for the
credit memo process shall be provided by the secretary.
Source:
1 SDR 44, effective December 6, 1974; 13 SDR 129, 13 SDR 134, effective July 1,
1987; 21 SDR 219, effective July 1, 1995; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50-60(2).
Law
Implemented: SDCL 10-50-20.1.
CHAPTER 64:44:03
MASTER SETTLEMENT AGREEMENT
Section
64:44:03:01 Tobacco distributors shipment reports.
64:44:03:02 Report forms -- Electronic filing.
64:44:03:01. Tobacco
distributors shipment reports. A tobacco distributor or wholesaler licensed
pursuant to SDCL chapter 10-50, shall report the number of cigarettes, as defined in SDCL 10-50B-4, received or shipped into South Dakota by the distributor or wholesaler. The report must distinguish each cigarette and tobacco shipment by manufacturer and individual brand and must identify the source of all cigarettes received or shipped into South Dakota. A report must be filed no later than 20 days after the end of each quarter and more frequently if so directed by the secretary. Any distributor or wholesaler selling cigarettes, as defined in SDCL 10-50B-4, made by a manufacturer not participating in the Master Settlement Agreement, as defined in SDCL subdivision 10-50B-3(4), shall provide invoices establishing the amount of cigarettes sold from such manufacturer.
Source:
26 SDR 83, effective December 21, 1999; 38 SDR 214, effective June 21, 2012.
General
Authority: SDCL 10-50B-6.
Law
Implemented: SDCL 10-50B-6.
64:44:03:02. Report forms -- Electronic filing. The report shall be filed on forms prescribed by the secretary either in paper form or by electronic means through an internet site maintained for this purpose by the department. Each report filed by electronic means shall be valid as if submitted with an original signature affixed if the report bears a personal identification number assigned to the person filing the report. The department shall assign a personal identification number to each person filing the report for the purpose of identifying the maker of the report and authenticating the report.
Source: 26 SDR 83, effective December 21, 1999; 30 SDR 58, effective November 5, 2003.
General Authority: SDCL 10-50B-6, 10-59-38(1)(2).
