CHAPTER 10-46
USE TAX
10-46-1 Definition of terms.
10-46-1.1 Lease or rental defined--Exclusions.
10-46-1.2 Telecommunications service defined.
10-46-1.3 Definition of terms related to telecommunications service and ancillary services.
10-46-2 Tax on tangible personal property purchased for use in state--Rate based on purchase price.
10-46-2.1 Tax on use of services--Exemptions--Related corporation defined.
10-46-2.2 Tax on use of rented property and products transferred electronically.
10-46-2.3 Exemption of use of property leased.
10-46-2.4 Certain purchases considered for resale purposes.
10-46-2.5 Chemicals purchased for use by lawn and garden services considered purchases for resale.
10-46-2.6 Materials purchased for floor laying service considered purchase for resale.
10-46-2.7 Exemption for gross receipts pursuant to contract requiring retailer to display products or signage--Exception.
10-46-2.8 Tax on use of product transferred electronically.
10-46-3 Tax on tangible personal property and electronically transferred products not originally purchased for use in state--Property more than seven years old.
10-46-4 Tax imposed on person using property.
10-46-5 Contractors and subcontractors taxed on property used in performance of contract--Fabrication costs excluded.
10-46-5.1 Sectional homes not vehicles--Contractors taxed on materials used in construction--Sectional homes defined.
10-46-5.2 Materials incorporated in construction work--Restriction on application of rate increase.
10-46-5.3 Value of molds and dies.
10-46-5.4 Exemption of materials becoming part of out-of-state signage or advertising.
10-46-6 Exemption of property and services subject to sales tax.
10-46-6.1 Credit for sales or use tax paid to another state--Reciprocity required.
10-46-6.2 Exemption for credit services by credit bureaus to certain financial institutions.
10-46-7 Constitutional exemptions from tax--Property of public agencies.
10-46-7.1 10-46-7.1. Repealed by SL 1995, ch 68, § 30.
10-46-8 Exemption of property brought in for personal use of nonresident.
10-46-9 Exemption of raw material, parts and newsprint for manufacture of products to be sold at retail.
10-46-9.1 Ink and newsprint used to produce shoppers' guides exempt--Shoppers' guides defined.
10-46-9.2 Brokers' and agents' services exempt from tax.
10-46-9.3 Packaging and container materials as tax exempt raw material.
10-46-9.4 Packaging and container materials sold to retailers exempt.
10-46-9.5 Exemption of certain sales commissions.
10-46-9.6 Exemption of gross receipts from sale of certain replacement parts.
10-46-9.7 10-46-9.7 to 10-46-12.1. Repealed by SL 1995, ch 68, §§ 31 to 35.
10-46-13 10-46-13. Repealed by SL 1985, ch 241, § 20.
10-46-13.1 Exemption of motor vehicles exempt from excise tax.
10-46-13.2 10-46-13.2. Repealed by SL 1995, ch 68, § 36.
10-46-14 Exemption of commodities otherwise taxed.
10-46-15 Exemption of property of educational institutions and hospitals--Use of property by individuals taxable--Registration of motor vehicles--Quarterly reports.
10-46-15.1 Exemption of insulin for human use.
10-46-15.2 Exemption of authorized purchases made with food stamps.
10-46-15.3 Exemption of authorized purchases of food.
10-46-15.4 Exemption of fair market value of property or service given without charge to exempt organization.
10-46-15.5 Exemption of prescribed drugs used by humans.
10-46-15.6 Exemption of prescribed medical equipment or prosthetic devices used by humans.
10-46-15.7 Exemption of prescribed medical devices used by humans.
10-46-16 Exemption of livestock, poultry, ostriches, emus, or rheas used in producing taxable final product.
10-46-16.1 Exemption of gross receipts from sale of live gamebirds by producer to certain nonprofit organizations.
10-46-16.2 Exemption of gross receipts from sales of certain animals.
10-46-16.3 Exemption of gross receipts from sale of feed and bedding for certain animals.
10-46-16.4 Exemption for sale of certain live nondomestic animals.
10-46-16.5 Exemption for sale of feed for certain live nondomestic animals.
10-46-16.6 Exemption for sale of swine or cattle semen.
10-46-17 Exemption of motor fuel used for agricultural purposes.
10-46-17.1 10-46-17.1. Repealed by SL 1983, ch 86, § 3.
10-46-17.2 Power for irrigation pumps exempt from tax.
10-46-17.3 Exemption of services enumerated in chapter 10-45.
10-46-17.4 Exemption of freeport merchandise and stocks of merchandise brought as foreign or domestic merchandise into foreign trade zone--Stocks of merchandise defined--Application.
10-46-17.5 Exemption of pesticides and related products or substances used for agricultural purposes--Use of funds from tax on endoparasiticides and ectoparasiticides.
10-46-17.6 Exemption of parts, repair services, and maintenance items and services on certain farm machinery, attachment units, and irrigation equipment.
10-46-17.7 Exemption for gross receipts from sale, resale, or lease of farm machinery, attachment units, and irrigation equipment.
10-46-17.8 Exemption of rental of devices used to apply agricultural fertilizers and pesticides.
10-46-18 Delivery in state as prima facie evidence of sale for use in state.
10-46-18.1 Use of service in state prima facie evidence of taxability.
10-46-18.2 Money paid as evidence of value of service--Reasonable value governs.
10-46-18.3 List of sales property or services to residents--Cost.
10-46-19 Manner of collection of tax.
10-46-20 Collection of tax by retailer maintaining place of business in state--Receipt given to purchaser--Agents and places of business listed with secretary.
10-46-21 Semiannual report of sales by retailer maintaining place of business in state--Contents.
10-46-22 Permit for collection of tax by retailer not maintaining place of business in state--Security for collection and payment--Cancellation of permit.
10-46-23 Collection and remittance of tax by retailer.
10-46-24 Surety bond filed by retailer.
10-46-25 Securities deposited by retailer in lieu of bond.
10-46-26 Tax collected as debt of retailer.
10-46-27 10-46-27. Repealed by SL 2010, ch 64, § 1.
10-46-27.1 Time for filing of return and payment of tax--Extension.
10-46-28 Contents of return--Remittance.
10-46-29 10-46-29. Repealed by SL 2010, ch 64, § 4.
10-46-30 Execution of retailers' returns.
10-46-31 Amounts of tax paid on conditional sales or installment contract receipts.
10-46-32 Collection of tax by deduction from motor fuel tax refunds.
10-46-33 Direct payment of tax by user.
10-46-34 Liability of user for tax--Returns and payments.
10-46-34.1 Credit for sales or use tax paid to another state--Reciprocal grant of credit required.
10-46-35 10-46-35. Repealed by SL 1982, ch 86, § 39.
10-46-35.1 Promulgation of rules.
10-46-36 10-46-36. Repealed by SL 1981, ch 106, § 1.
10-46-37 False or fraudulent return in attempt to evade tax as misdemeanor.
10-46-38 Failure to file return as misdemeanor.
10-46-39 Administration and enforcement--Sales tax procedural and collection provisions applicable.
10-46-40 Rules for administration--Uniformity of application.
10-46-41 Determination of tax by secretary in absence of correct return.
10-46-42 Secretary's certificate as prima facie evidence of failure to file return or pay tax.
10-46-43 Records maintained by retailers and users--Examination and investigations by secretary--Access to records.
10-46-44 Revocation of retailer's sales tax permit on failure to comply--Revocation of corporate authority to do business.
10-46-45 Notice and hearing on revocation of permit or authority to do business.
10-46-46 Restoration of revoked sales tax permit.
10-46-47 10-46-47. Repealed by SL 2017, ch 66, § 1.
10-46-47.1 Personal liability of officers, managers, or partners of entity failing to file returns or pay tax--Security in lieu of liability--Bonded municipal officials exempt.
10-46-48 Revenue credited to general fund.
10-46-49 10-46-49. Repealed by SL 2001, ch 56, § 14.
10-46-50 Floor laying service subject to tax.
10-46-51 Exemption of large boats subject to excise tax.
10-46-52 Exemption of gaming proceeds.
10-46-53 10-46-53, 10-46-54. Repealed by SL 1995, ch 68, §§ 40, 41.
10-46-55 Exemption of natural gas transportation services by pipeline.
10-46-56 Exemption for the use of credit card processing services.
10-46-57 10-46-57. Repealed by SL 2004, ch 94, § 12.
10-46-58 Passenger transportation tax imposed--Transportation within state.
10-46-59 Inapplicability of tax.
10-46-60 10-46-60. Repealed by SL 2004, ch 94, § 14.
10-46-61 10-46-61. Repealed by SL 2001, ch 56, § 16.
10-46-62 Gross receipts from charge of interest exempted.
10-46-63 Exemption for use of certain rodeo services.
10-46-64 Exemption of repair shops, locksmiths, locksmith shops, and lock parts.
10-46-65 Exemptions.
10-46-66 Retail sales include auctions, consignments, products transferred electronically, and services--Responsibilities of auction clerk and auctioneer.
10-46-67 Department authorized to issue direct payment permits to certain retailers--Application procedure--Direct payment permit defined--Liability for sales tax on sale to permit holder--Promulgation of rules.
10-46-68 Exemption for lodging house or hotel membership fees.
10-46-69 Tax on use of certain mobile telecommunications services.
10-46-69.1 Tax on use of certain mobile telecommunications services.
10-46-69.2 Tax on ancillary services.
10-46-70 Exemption of receipts received by the state and political subdivisions from management services provided to nonprofit entity.
10-46-71 Exemption for sale of coins, currency, or bullion.
10-46-72 Relief from liability for failing to report tax at new rate--Conditions.
10-46-73 Exemption for nonprofit corporations created for fire protection.
10-46-74 Exemption--Coaches.
10-46-1. Definition of terms.
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;
(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 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;
(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 alcoholic beverages, tobacco, or prepared food;
(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;
(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;
(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.
Source: SL 1939, ch 276, § 2; SDC Supp 1960, § 57.4302; SL 1979, ch 84, § 6A; SL 1982, ch 117, § 1; SL 1982, ch 118, § 3; SL 1987, ch 108, § 1; SL 2002, ch 64, § 29; SL 2003, ch 61, § 10; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2004, ch 187, § 6; SL 2005, ch 69, § 2; SL 2007, ch 62, § 1; SL 2008, ch 51, §§ 31 to 36; SL 2010, ch 59, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2011, ch 2, § 120.
10-46-1.1. Lease or rental defined--Exclusions.
For the purpose of the tax imposed by this chapter, the term, lease or rental, means any transfer of possession or control of tangible personal property or any product transferred electronically for a fixed or indeterminate term for consideration. A lease or rental may include future options to purchase or extend. Lease or rental does not include:
(1) A transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments;
(2) A transfer or possession or control of property under an agreement that requires the transfer of title upon completion of required payments and payment of an option price does not exceed the greater of one hundred dollars or one percent of the total required payments; or
(3) Providing tangible personal property along with an operator for a fixed or indeterminate period of time. A condition of this exclusion is that the operator is necessary for the equipment to perform as designed. For the purpose of this subdivision, an operator shall do more than maintain, inspect, or set-up the tangible personal property.
Source: SL 2003, ch 61, § 11; SL 2008, ch 51, § 37.
10-46-1.2. Telecommunications service defined.
The term, telecommunications service, as used in this chapter, means the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. The term, telecommunications service, includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice over internet protocol services or is classified by the Federal Communications Commission as enhanced or value added.
The term, telecommunications service, does not include:
(1) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a purchaser where such purchaser's primary purpose for the underlying transaction is the processed data or information;
(2) Installation or maintenance of wiring or equipment on a customer's premises;
(3) Tangible personal property;
(4) Advertising, including directory advertising;
(5) Billing and collection services provided to third parties;
(6) Internet access service;
(7) Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance and routing of such services by the programming service provider. Radio and television audio and video programming services shall include but not be limited to cable service as defined in 47 USC 522(6), as of June 1, 2007, and audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 CFR 20.3;
(8) Ancillary services; or
(9) Digital products delivered electronically, including but not limited to software, music, video, reading materials, or ring tones.
The term, telecommunications service, includes the following services:
(1) "800 service," any telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call;
(2) "900 service," an inbound toll telecommunications service purchased by a subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded announcement or live service. A 900 service does not include the charge for the collection of services provided by the seller of the telecommunications services to the subscriber or service or product sold by the subscriber to the subscriber's customer;
(3) "Fixed wireless service," a telecommunications service that provides radio communication between fixed points;
(4) "Mobile wireless service," a telecommunications service that is transmitted, conveyed, or routed regardless of the technology used, where either the origination point or termination point, or both, of the transmission, conveyance, or routing are not fixed;
(5) "Paging service," a telecommunications service that provides transmission of coded radio signals for the purpose of activation specific pages. Such transmissions may include either messages or sounds, or both;
(6) "Prepaid calling service," the right to access exclusively telecommunications services, which must be paid for in advance and which enables the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount;
(7) "Prepaid wireless calling service," a telecommunications service that provides the right to utilize mobile wireless service as well as other nontelecommunications services, including the download of digital products delivered electronically, content and ancillary services, which must be paid for in advance that is sold in predetermined units or dollars of which the number declines with use in a known amount;
(8) "Private communication service," a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels; and
(9) "Value-added non-voice data service," a service that otherwise meets the definition of telecommunications services in which computer processing applications are used to act on the form, content, code, or protocol of the information or data primarily for a purpose other than transmission, conveyance, or routing.
Source: SL 2008, ch 52, § 3; SL 2009, ch 47, § 5.
10-46-1.3. Definition of terms related to telecommunications service and ancillary services.
Terms used in this chapter mean:
(1) "Intrastate telecommunications service," a telecommunications service that originates in one United States state or a United States territory or possession, and terminates in the same United States state or a United States territory or possession;
(2) "Interstate telecommunications service," a telecommunications service that originates in one United States state, or a United States territory or possession, and terminates in a different United States state or a United States territory or possession;
(3) "International telecommunications service," a telecommunications service that originates or terminates in the United States and terminates or originates outside the United States, respectively. United States includes the District of Columbia or a United States territory or possession;
(4) "Ancillary services," services that are associated with or incidental to the provision of telecommunications services, including detailed telecommunications billing, directory assistance, vertical service, and voice mail services;
(5) "Detailed telecommunications billing service," an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement;
(6) "Directory assistance," an ancillary service of providing telephone number information, address information, or telephone number information and address information;
(7) "Vertical service," an ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services;
(8) "Voice mail service," an ancillary service that enables the customer to store, send, or receive recorded messages. The term does not include any vertical services that the customer may be required to have in order to utilize the voice mail service;
(9) "Conference bridging service," an ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. The term does not include the telecommunications services used to reach the conference bridge.
Source: SL 2009, ch 47, § 6; SL 2010, ch 56, § 2.
10-46-2. Tax on tangible personal property purchased for use in state--Rate based on purchase price.
An excise tax is hereby imposed on the privilege of the use, storage, and consumption in this state of tangible personal property purchased for use in this state at the same rate of percent of the purchase price of said property as is imposed pursuant to chapter 10-45.
Source: SL 1939, ch 276, § 3; SL 1953, ch 471, § 1; SDC Supp 1960, § 57.4303 (1); SL 2001, ch 56, § 7.
10-46-2.1. Tax on use of services--Exemptions--Related corporation defined.
For the privilege of using services in South Dakota, except those types of services exempted by § 10-46-17.3, there is imposed on the person using the service an excise tax equal to four and two-tenths percent of the value of the services at the time they are rendered. However, this tax may not be imposed on any service rendered by a related corporation, as defined in subdivision 10-43-1(11), for use by a financial institution, as defined in subdivision 10-43-1(4); or on any service rendered by a financial institution, as defined in subdivision 10-43-1(4), for use by a related corporation as defined in subdivision 10-43-1(11). For the purposes of this section, the term, related corporation, includes a corporation, which together with the financial institution, is part of a controlled group of corporations, as defined in 26 U.S.C. § 1563 as in effect on January 1, 1989, except that the eighty percent ownership requirements set forth in 26 U.S.C. § 563(a)(2)(A) for a brother-sister controlled group are reduced to fifty-one percent. For the purpose of this chapter, services rendered by an employee for the use of the employer are not taxable.
Source: SL 1979, ch 84, § 6D; SL 1980, ch 325, § 21; SL 1983, ch 97, § 2; SL 1987, ch 98, § 10; SL 1988, ch 106, § 1; SL 1989, ch 110, § 2; SL 2016, ch 65, § 9, eff. June 1, 2016; SL 2023, ch 32, § 9.
Effective July 1, 2027
10-46-2.1. Tax imposed on use of services--Exemptions--Related corporation defined.
For the privilege of using services in South Dakota, except those types of services exempted by § 10-46-17.3, there is imposed on the person using the service an excise tax equal to four and one-half percent of the value of the services at the time they are rendered. However, this tax may not be imposed on any service rendered by a related corporation as defined in subdivision 10-43-1(11) for use by a financial institution as defined in subdivision 10-43-1(4) or on any service rendered by a financial institution as defined in subdivision 10-43-1(4) for use by a related corporation as defined in subdivision 10-43-1(11). For the purposes of this section, the term related corporation includes a corporation which together with the financial institution is part of a controlled group of corporations as defined in 26 U.S.C. § 1563 as in effect on January 1, 1989, except that the eighty percent ownership requirements set forth in 26 U.S.C. § 563(a)(2)(A) for a brother-sister controlled group are reduced to fifty-one percent. For the purpose of this chapter, services rendered by an employee for the use of his employer are not taxable.
Source: SL 1979, ch 84, § 6D; SL 1980, ch 325, § 21; SL 1983, ch 97, § 2; SL 1987, ch 98, § 10; SL 1988, ch 106, § 1; SL 1989, ch 110, § 2; SL 2016, ch 65, § 9, eff. June 1, 2016; SL 2023, ch 32, §§ 9, 19.
10-46-2.2. Tax on use of rented property and products transferred electronically.
An excise tax is imposed upon the privilege of the use of rented tangible personal property and any product transferred electronically in this state at the rate of four and two-tenths percent of the rental payments upon the property.
Source: SL 1983, ch 86, § 7; SL 1987, ch 98, § 11; SL 1988, ch 106, § 1; SL 2008, ch 51, § 38; SL 2016, ch 65, § 10, eff. June 1, 2016; SL 2023, ch 32, § 10.
Effective July 1, 2027
10-46-2.2. Tax on use of rented property and products transferred electronically.
An excise tax is imposed upon the privilege of the use of rented tangible personal property and any product transferred electronically in this state at the rate of four and one-half percent of the rental payments upon the property.
Source: SL 1983, ch 86, § 7; SL 1987, ch 98, § 11; SL 1988, ch 106, § 1; SL 2008, ch 51, § 38; SL 2016, ch 65, § 10, eff. June 1, 2016; SL 2023, ch 32, §§ 10, 19.
10-46-2.3. Exemption of use of property leased.
The use, storage, or consumption of tangible personal property and any product transferred electronically actually leased to persons in this state is exempted from the provisions of this chapter and the tax imposed by it.
Source: SL 1983, ch 86, § 5; SL 2008, ch 51, § 39.
10-46-2.4. Certain purchases considered for resale purposes.
Services purchased by an engineer, architect, or surveyor on behalf of a client in the performance of a contract for such client shall be considered purchases for resale purposes.
Source: SL 1988, ch 107, § 2.
10-46-2.5. Chemicals purchased for use by lawn and garden services considered purchases for resale.
Chemicals purchased for use by lawn and garden services (industry no. 0782) as enumerated in the Standard Industrial Classification Manual, 1987, as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President, and used in such services shall be considered as purchases for resale.
Source: SL 1989, ch 114, § 2.
10-46-2.6. Materials purchased for floor laying service considered purchase for resale.
Carpet, floor covering, tacks, glue, and other materials purchased for use by floor laying and other floor work not elsewhere classified (industry no. 1752) as enumerated in the Standard Industrial Classification Manual of 1987, as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President, and used for such work are purchases for resale.
Source: SL 1991, ch 108, § 7.
10-46-2.7. Exemption for gross receipts pursuant to contract requiring retailer to display products or signage--Exception.
There are hereby exempted from the provisions of this chapter and the tax imposed by it, gross receipts received by a retailer from a manufacturer, wholesaler, or distributor pursuant to a written contract between the retailer and manufacturer, wholesaler, or distributor that requires the retailer to display the manufacturer, wholesaler, or distributor's product or signage in a specified manner or location. Any discount or deferred payment received by a retailer from a distributor, wholesaler, or manufacturer for purchasing a product for sale at retail does not constitute gross receipts subject to the tax imposed by this chapter.
Source: SL 2003, ch 62, § 2.
10-46-2.8. Tax on use of product transferred electronically.
An excise tax is hereby imposed on the use, storage, or consumption in this state of any product transferred electronically purchased for use in this state at the same rate of percent of the purchase price of any product transferred electronically as is imposed pursuant to chapter 10-45.
The tax is imposed if:
(1) The sale is to an end user;
(2) The sale is to a person who is not an end user, unless otherwise exempted by this chapter;
(3) The seller grants the right of permanent or less than permanent user of the products transferred electronically; or
(4) The sale is conditioned or not conditioned upon continued payment.
For the purposes of this section, the term, end user, does not include any person who received by contract any product transferred electronically for further commercial broadcast, rebroadcast, transmission, retransmission, licensing, relicensing, distribution, redistribution, or exhibition of the product, in whole or in part, to another person.
For the purposes of this section, the term, permanent use, means perpetual or for an indefinite or unspecified length of time. The sale of a digital code that may be utilized to obtain a product transferred electronically shall be taxed in the same manner as the product transferred electronically. A digital code is a code that permits a purchaser to obtain at a later date a product transferred electronically.
Source: SL 2008, ch 51, § 30.
10-46-3. Tax on tangible personal property and electronically transferred products not originally purchased for use in state--Property more than seven years old.
An excise tax is imposed on the privilege of the use, storage or consumption in this state of tangible personal property or any product transferred electronically not originally purchased for use in this state, but thereafter used, stored or consumed in this state, at the same rate of percent of the fair market value of the property at the time it is brought into this state as is imposed by § 10-45-2. The use, storage, or consumption of tangible personal property or any product transferred electronically more than seven years old at the time it is brought into the state by the person who purchased such property for use in another state is exempt from the tax imposed herein. The secretary may promulgate rules pursuant to chapter 1-26 relating to the determination of the age and value of the tangible personal property or the product transferred electronically brought into this state.
Source: SL 1953, ch 471, § 1; SDC Supp 1960, § 57.4303 (2); SL 1984, ch 90; SL 1991, ch 106; SL 2008, ch 51, § 40.
10-46-4. Tax imposed on person using property.
In addition, said tax is hereby imposed upon every person using, storing, or otherwise consuming such property within this state until such tax has been paid directly to a retailer or the secretary of revenue as hereinafter provided.
Source: SL 1939, ch 276, § 3; SL 1953, ch 471, § 1; SDC Supp 1960, § 57.4303 (3); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-5. Contractors and subcontractors taxed on property used in performance of contract--Fabrication costs excluded.
If a contractor or subcontractor, as defined in chapters 10-46A and 10-46B, uses tangible personal property or any product transferred electronically in the performance of a contract or to fulfill contract or subcontract obligations, whether the title to the property is in the name of the contractor, subcontractor, contractee, subcontractee, or any other person, or whether the titleholder of the property would be subject to pay the sales or use tax, the contractor or subcontractor shall pay a tax at the rate prescribed by § 10-45-2, measured by the purchase price or fair market value of the property, whichever is greater, unless the property has been previously subjected to a sales or use tax, in this state and the tax due thereon has been paid. However, if the contractor or subcontractor fabricates tangible personal property for use in the performance of a contract, fair market value excludes the value of the contractor's or subcontractor's fabrication costs.
Source: SDC Supp 1960, § 57.4303 (4) as added by SL 1966, ch 256; SL 1977, ch 99, § 2; SL 1982, ch 118, § 1; SL 1992, ch 91, § 1; SL 2008, ch 51, § 41.
10-46-5.1. Sectional homes not vehicles--Contractors taxed on materials used in construction--Sectional homes defined.
If a sectional home is permanently affixed to real property, it is not a vehicle subject to registration under chapter 32-3, and shall be classified as real property. A contractor who erects such a home shall hold a sales tax or use tax license and pay use tax based upon the fair market value of the raw materials used to construct and erect the home.
For the purpose of this section, the term, sectional home, means any home pre-built in part or in whole for the purpose of permanent placement on a foundation. Mobile homes as defined by subdivision 32-3-1(8) and manufactured homes as defined in subdivision 32-3-1(6) are not sectional homes.
Source: SDCL, § 10-46-5 as added by SL 1977, ch 99, § 2; SL 1987, ch 29, § 7; SL 2005, ch 71, § 2.
10-46-5.2. Materials incorporated in construction work--Restriction on application of rate increase.
No tax increase may be levied on materials incorporated in construction work pursuant to construction contracts bid or entered into on or before the effective date of the tax increase.
Source: SL 1984, ch 93, § 2; SL 2001, ch 56, § 8.
10-46-5.3. Value of molds and dies.
The value of molds and dies produced in connection with the fabrication or manufacture of other tangible personal property is limited to the cost of materials incorporated in the molds or dies to the extent the cost of such materials have not previously been subjected to sales or use tax.
Source: SL 1992, ch 91, § 2.
10-46-5.4. Exemption of materials becoming part of out-of-state signage or advertising.
Notwithstanding the provisions of § 10-46-5, the use in this state of tangible personal property and any product transferred electronically that becomes an integral and component part of a final product manufactured by a business classified in signs and advertising specialities, (industry no. 3993) in the Standard Industrial Classification Manual, 1987, as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President, that is installed by the manufacturer outside of this state is exempt from the tax imposed by this chapter.
Source: SL 2003, ch 67, § 1; SL 2008, ch 51, § 42.
10-46-6. Exemption of property and services subject to sales tax.
The use in this state of tangible personal property, any product transferred electronically, or 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 made or which may hereafter be made thereto, is hereby specifically exempted from the tax imposed by this chapter.
Source: SL 1939, ch 276, § 4 (1); SDC Supp 1960, § 57.4304 (1); SL 1979, ch 84, § 6B; SL 2008, ch 51, § 43.
10-46-6.1. Credit for sales or use tax paid to another state--Reciprocity required.
The amount of any use tax imposed with respect to tangible personal property, any product transferred electronically, or services shall be reduced by the amount of any sales or use tax previously paid by the taxpayer with respect to the property on account of liability to another state or its political subdivisions. However, no credit may be given under this section where taxes paid on tangible personal property, any product transferred electronically, or services in another state or its political subdivisions of that state does not reciprocally grant a credit for taxes paid on similar tangible personal property or any product transferred electronically.
Source: SL 1971, ch 81; SL 1979, ch 84, § 6C; SL 2008, ch 51, § 44.
10-46-6.2. Exemption for credit services by credit bureaus to certain financial institutions.
There are specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the use of credit services provided by credit bureaus to financial institutions as defined in § 10-43-1, which financial institutions are paying taxes pursuant to the provisions of chapter 10-43.
Source: SL 1991, ch 102, § 2.
10-46-7. Constitutional exemptions from tax--Property of public agencies.
Tangible personal property and any product transferred electronically, the storage, use, or other consumption of which this state is prohibited from taxing under the Constitution or laws of the United States of America or under the Constitution of this state, or tangible personal property and any product transferred electronically sold to the United States, the State of South Dakota, or any public or municipal corporation of the state which is for the use, storage, or consumption of such public corporations is hereby specifically exempt from the tax imposed by this chapter.
Source: SL 1939, ch 276, § 4 (3); SL 1943, ch 301; SL 1953, ch 471; SL 1955, ch 419, § 1; SDC Supp 1960, § 57.4304 (3); SL 1970, ch 75; SL 1999, ch 222, § 1; SL 2008, ch 51, § 45.
10-46-8. Exemption of property brought in for personal use of nonresident.
The use in this state of all articles of tangible personal property and any product transferred electronically brought into the State of South Dakota by a nonresident individual thereof for his or her personal use or enjoyment while within the state, is hereby specifically exempted from the tax imposed by this chapter.
Source: SL 1939, ch 276, § 4 (5); SDC Supp 1960, § 57.4304 (5); SL 2008, ch 51, § 46.
10-46-9. Exemption of raw material, parts and newsprint for manufacture of products to be sold at retail.
The use in this state of tangible personal property including containers, labels and shipping case thereof which is intended shall, by means of fabrication, compounding or manufacture become a part of other tangible personal property intended to be sold ultimately at retail within or without the State of South Dakota, is hereby specifically exempted from the tax imposed by this chapter. The term tangible personal property shall be construed to include without limiting the meaning of said term, raw material and newspaper print.
Source: SL 1939, ch 276, § 4 (7); SL 1943, ch 303; SDC Supp 1960, § 57.4304 (6).
10-46-9.1. Ink and newsprint used to produce shoppers' guides exempt--Shoppers' guides defined.
Ink and newsprint when used in the production of shoppers' guides are hereby exempt from the tax imposed under this chapter.
For the purposes of this section the term, shoppers' guide, includes advertising publications whose advertisements are solicited from the general public and whose publications are for free distribution to the general public and are published regularly at least once a month, consisting of printed sheets containing advertising, bearing a date of issue, and devoted to advertising of general interest.
Source: SL 1977, ch 100, § 2.
10-46-9.2. Brokers' and agents' services exempt from tax.
The tax imposed by this chapter shall not apply to services of brokers and agents licensed under Title 47.
Source: SL 1979, ch 306, § 3.
10-46-9.3. Packaging and container materials as tax exempt raw material.
Containers, labels, cartons, packing cases, wrapping paper, twine, glue, bags, bottles, shipping cases, wrapping film, strapping, rope, tape, cans, lids, boxes, pads, dividers, stockinettes, casings, and similar articles and receptacles used or consumed by manufacturers, processors, or fabricators are raw material within the meaning of § 10-46-9 and are not subject to sales or use tax.
Source: SL 1982, ch 114.
10-46-9.4. Packaging and container materials sold to retailers exempt.
There are specifically exempted from the provisions of this chapter, and from the computation of tax imposed by it, gross receipts from the sale of paper and plastic bags, wrapping paper, twine, tape, and similar articles sold to retailers licensed under this chapter if the retailer uses the articles as wrappers or containers to hold other tangible personal property sold by the retailer and subject to sales or use tax and the articles are supplied free by the retailer as a convenience to the customer.
Source: SL 1984, ch 85, § 2.
10-46-9.5. Exemption of certain sales commissions.
Unless otherwise specifically subject to tax, the gross receipts resulting from fees or commissions received for rendering a service which provides for the sale of tangible personal property, any product transferred electronically, or services is exempt from the tax imposed by this chapter.
Source: SL 1988, ch 113, § 2; SL 2008, ch 51, § 47.
10-46-9.6. Exemption of gross receipts from sale of certain replacement parts.
There are exempted from the provisions of this chapter and from the computation of the tax imposed by it, the gross receipts from the sale of replacement parts that are sold to retailers and which will be installed in tangible personal property that will ultimately be for resale.
Source: SL 1989, ch 111, § 2.
10-46-13.1. Exemption of motor vehicles exempt from excise tax.
The use in this state of motor vehicles exempt from the motor vehicle excise tax pursuant to § 32-5B-2 is specifically exempted from the tax imposed by this chapter, with the exception of farm vehicles as described pursuant to the provisions of § 32-5-1.3.
Source: SL 1987, ch 103, § 2; SL 1988, ch 110, § 2; SL 2012, ch 67, § 4; SL 2015, ch 68, § 2.
10-46-14. Exemption of commodities otherwise taxed.
The use in this state of gasoline, motor fuel, and special fuel subject to tax under chapter 10-47B is specifically exempted from the tax imposed by this chapter.
Source: SL 1939, ch 276, § 4(4); SL 1949, ch 424; SDC Supp 1960, § 57.4304(4); SL 1970, ch 74, § 3; SL 1979, ch 87, § 5; SL 1982, ch 119; SL 1983, ch 100, § 72; SL 1989, ch 117; SL 1991, ch 107, § 1.
10-46-15. Exemption of property of educational institutions and hospitals--Use of property by individuals taxable--Registration of motor vehicles--Quarterly reports.
The gross receipts from sales of tangible personal property, any product transferred electronically, and the gross receipts from sales, furnishing or service of electrical energy, natural and artificial gas, water and communication service to and for use by religious educational institutions and private educational institutions currently recognized as exempt under section 501(c)(3) of the Internal Revenue Code as in effect on January 1, 1983, and nonprofit, charitable hospitals when purchases are made by authorized officials, payment made from the institution's funds and title to the property retained in the name of the institutions, are specifically exempted from the tax imposed by this chapter. For the purposes of this section, a private educational institution shall be defined as an institution currently recognized as exempt under section 501(c)(3) of the Internal Revenue Code as in effect on January 1, 1995, maintaining a campus physically located within this state; and accredited by the South Dakota Department of Education or the North Central Association of Colleges and Schools.
This exemption does not extend to sales to or purchases of tangible personal property or any product transferred electronically for the personal use of officials, members, or employees of such institutions or to sales to or purchases of tangible personal property or any product transferred electronically used in the operation of a taxable retail business. The exemption provided in this section does not, in any manner, relieve the institution from the payment of the additional and further license fee imposed on the registration of motor vehicles. All institutions claiming this exemption shall, at the end of each quarter of each calendar year, file with the Department of Revenue a list of all purchases on which exemption was claimed, fully itemized, showing name and address of vendors, description of property purchased, purchase price, and brief explanation of use or intended use.
Source: SL 1951, ch 453; SDC Supp 1960, § 57.4304 (8); SL 1983, ch 96, § 2; SL 1995, ch 68, § 37; SL 2003, ch 272, § 63; SL 2003, ch 272 (Ex. Ord. 03-1), §§ 63, 82; SL 2008, ch 51, § 48; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-15.1. Exemption of insulin for human use.
The use in this state of insulin, to the extent used by humans, that is not sold by prescription is specifically exempt from the tax imposed by this chapter.
Source: SL 1974, ch 98, § 2; SL 1984, ch 88, § 2; SL 1989, ch 106, § 2; SL 2003, ch 61, § 12.
10-46-15.2. Exemption of authorized purchases made with food stamps.
There are hereby specifically exempted from the tax imposed by this chapter the gross receipts resulting from authorize purchases made with food stamps under the provision of the Food Stamp Act of 1977 (P.L. 95-113), codified at 7 U.S.C. § 2012(g), as amended through January 1, 2001.
Source: SL 1987, ch 106, § 2; SL 2001, ch 56, § 9.
10-46-15.3. Exemption of authorized purchases of food.
There are hereby specifically exempted from the tax imposed by this chapter the gross receipts resulting from authorized purchases of food made under Section 17(c) of the Child Nutrition Act of 1966 (42 U.S.C. § 1786(c)).
Source: SL 1987, ch 106, § 4.
10-46-15.4. Exemption of fair market value of property or service given without charge to exempt organization.
There are specifically exempted from the provisions of this chapter and the computation of the tax imposed by it, the fair market value of any tangible personal property, product transferred electronically, or service given without charge to an institution, organization, or group exempt from the tax imposed by this chapter.
Source: SL 1987, ch 105, § 2; SL 2008, ch 51, § 49.
10-46-15.5. Exemption of prescribed drugs used by humans.
The use in this state of drugs as defined by rule promulgated by the secretary of revenue pursuant to chapter 1-26 to the extent used by humans, if the drugs are prescribed by prescription, dispensed, or administered by a physician, chiropractor, optometrist, dentist, podiatrist, or audiologist, is specifically exempt from the tax imposed by this chapter.
Source: SL 2003, ch 61, § 14; SL 2011, ch 1 (Ex. Ord. 11-1), § 35, eff. Apr. 12, 2011.
10-46-15.6. Exemption of prescribed medical equipment or prosthetic devices used by humans.
The use in this state of durable medical equipment, mobility enhancing equipment, and prosthetic devices as defined by rule promulgated by the secretary of revenue pursuant to chapter 1-26 to the extent used by humans, if the durable medical equipment, mobility enhancing equipment, and prosthetic devices are prescribed by prescription by a physician, chiropractor, optometrist, dentist, podiatrist, or audiologist, is specifically exempt from the tax imposed by this chapter.
Source: SL 2003, ch 61, § 15; SL 2011, ch 1 (Ex. Ord. 11-1), § 35, eff. Apr. 12, 2011.
10-46-15.7. Exemption of prescribed medical devices used by humans.
There are specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the use of any medical device, as that term is defined in this section, to the extent used by humans, if the medical device is prescribed by prescription by a physician, chiropractor, optometrist, dentist, podiatrist, or audiologist. The term, medical device, means any instrument, apparatus, implement, contrivance, or other similar or related article, including a component, part, or accessory, that is prescribed for use on a single patient and that is:
(1) Recognized in the official National Formulary, or the United States Pharmacopoeia, or any supplement to them;
(2) Intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, detection, or prevention of disease, of the human body; or
(3) Intended to affect the structure or any function of the human body, and that does not achieve any of it's primary intended purposes through chemical action within or on the human body and that is not dependent upon being metabolized for the achievement of any of its primary intended purposes.
A medical device is not durable medical equipment, mobility enhancing equipment, or a prosthetic device.
Source: SL 2003, ch 61, § 16.
10-46-16. Exemption of livestock, poultry, ostriches, emus, or rheas used in producing taxable final product.
No gross receipts from sales of livestock or live poultry, ostriches, emus, or rheas, if such sales are a part of a series of transactions incident to producing a finished product intended to be offered for an ultimate retail sale, shall be taxable under this chapter, except that an ultimate retail sale interrupting the series of transactions with an intended final use or consumption shall be taxable.
Source: SL 1951, ch 461; SDC Supp 1960, § 57.3202-1; SL 1992, ch 94, § 4.
10-46-16.1. Exemption of gross receipts from sale of live gamebirds by producer to certain nonprofit organizations.
There are specifically exempted from the provisions of this chapter and the computation of the tax imposed by it, gross receipts from the sale of live gamebirds sold by the producer to nonprofit organizations which release such birds or to commercial hunting operators who charge fees to hunt such birds.
Source: SL 1989, ch 108, § 2.
10-46-16.2. Exemption of gross receipts from sales of certain animals.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of live cattle, buffalo, sheep, goats, swine, poultry, ostriches, emus, rheas, and domesticated fur-bearing animals defined in chapter 40-35, used or to be used as breeding or production stock, and horses and other animals within the family equidae. The term, poultry, does not include any fowl other than domestic fowl kept and raised for the market or the production of eggs for human consumption.
Source: SL 1989, ch 113, § 3; SL 1992, ch 94, § 5.
10-46-16.3. Exemption of gross receipts from sale of feed and bedding for certain animals.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of feed and bedding for cattle, buffalo, sheep, goats, swine, pheasants, partridges, quail, poultry, ostriches, emus, rheas, and domesticated fur-bearing animals defined in chapter 40-35, if such feed or bedding is used by farmers or ranchers who are regularly engaged in the business of raising and feeding such animals, or producing milk for sale for human consumption, and horses and other animals within the family equidae. The term, poultry, does not include any fowl other than domestic fowl kept and raised for the market or the production of eggs for human consumption. The term, bedding, only includes straw, corn stover, and bean straw.
Source: SL 1989, ch 113, § 4; SL 1992, ch 94, § 6; SL 2006, ch 49, § 2; SL 2012, ch 70, § 2.
10-46-16.4. Exemption for sale of certain live nondomestic animals.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of any live nondomestic animal regulated by the Animal Industry Board pursuant to § 40-3-26, if the animal is to be used by a farmer or rancher who is regularly engaged in the breeding and raising of such animals.
Source: SL 1993, ch 311, § 12.
10-46-16.5. Exemption for sale of feed for certain live nondomestic animals.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of feed for any nondomestic animal regulated by the Animal Industry Board pursuant to § 40-3-26, if the feed is to be used by a farmer or rancher who is regularly engaged in the breeding and raising of such animals.
Source: SL 1993, ch 311, § 13.
10-46-16.6. Exemption for sale of swine or cattle semen.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of swine semen and cattle semen to be used for agricultural purposes.
Source: SL 2006, ch 50, § 2.
10-46-17. Exemption of motor fuel used for agricultural purposes.
Motor fuel, including kerosene, tractor fuel, natural and artificial gas, liquefied petroleum gas, and distillate, when used for agricultural purposes, is exempt from the tax imposed by this chapter.
For the purposes of this section, agricultural purposes does not include the lighting or heating of any farm residence.
Source: SL 1945, ch 342, § 1; SL 1951, ch 457, §§ 1, 2; SL 1959, ch 439; SDC Supp 1960, § 57.3202-2; SL 1985, ch 89, § 2; SL 1994, ch 96, § 3; SL 2012, ch 67, § 6.
10-46-17.2. Power for irrigation pumps exempt from tax.
There are hereby specifically exempted from the provisions of this chapter and from the amount of tax imposed by it, gross receipts from the sale of electricity used to power irrigation pumps and the gross receipts from the horsepower charge on electric motors powering irrigation pumps whenever the purchaser has made the purchase exclusively for agricultural purposes.
Source: SL 1979, ch 85, § 2.
10-46-17.3. Exemption of services enumerated in chapter 10-45.
The use in this state of the types of services specifically exempt, under §§ 10-45-11.1, 10-45-12.1, and 10-45-19.1, from the tax imposed by chapter 10-45 is exempt from the tax imposed by this chapter.
Source: SL 1982, ch 118, § 2.
10-46-17.4. Exemption of freeport merchandise and stocks of merchandise brought as foreign or domestic merchandise into foreign trade zone--Stocks of merchandise defined--Application.
There is exempted from the provisions of this chapter and from the computation of the tax imposed by it, freeport merchandise and stocks of merchandise brought as foreign or domestic merchandise into a foreign trade zone. For the purposes of this section, stocks of merchandise is personal property which is held primarily for sale and not subject to annual depreciation. However, the exemption only applies if written evidence of the contract of sale is retained, and such contract indicates that the merchandise is to be shipped in international commerce to a point outside the United States not to be returned to a point within the United States.
Source: SL 1988, ch 109, § 2; SL 2001, ch 56, § 10; SL 2004, ch 93, § 2.
10-46-17.5. Exemption of pesticides and related products or substances used for agricultural purposes--Use of funds from tax on endoparasiticides and ectoparasiticides.
Pesticides, as defined in § 38-20A-1 to be used exclusively for agricultural purposes, are exempt from the tax imposed by this chapter. Any product or substance to be used in conjunction with the application or use of pesticides for agricultural purposes is also exempt. These products or substances include adjuvants, surfactants, ammonium sulfate, inoculants, drift retardants, water conditioners, seed treatments, foam markers, and foam dyes. Equipment, other than farm machinery, attachment units, and irrigation equipment used exclusively for agricultural purposes, for the application of pesticides and related products and substances is not exempt. The tax imposed by this chapter on endoparasiticides and ectoparasiticides shall be used for veterinary student tuition grants, for South Dakota residents in the South Dakota State University veterinary program, South Dakota State University veterinary program operations, and the operations and activities conducted by the State Animal Disease Research and Diagnostic Laboratory established in § 13-58-13. The amount of funding initially dedicated to establish the tuition grants and South Dakota State University veterinary program operations shall be based upon the difference between in-state and out-of-state tuition for veterinary student grants designated for South Dakota students at the Iowa State University veterinary program in fiscal year 2020, of which at least seventy-five percent shall be used to fund tuition grants for South Dakota residents in the program. The portion designated for tuition grants shall be adjusted annually based on the difference between the prior year and current year tuition rate for the veterinary program at the University of Minnesota, or other future accredited institution of higher education collaborating with South Dakota State University veterinary program for final degree completion. An additional amount of two hundred fifty thousand dollars shall be used to support the operations of the laboratory. The funding shall be budgeted and expended through the general appropriations act pursuant to chapter 4-7.
Source: SL 1989, ch 107, § 2; SL 1993, ch 48, § 14; SL 2001, ch 56, § 11; SL 2006, ch 48, § 2; SL 2006, ch 58, § 22, eff. Mar. 2, 2006; SL 2018, ch 64, § 2; SL 2019, ch 88, § 3.
10-46-17.6. Exemption of parts, repair services, and maintenance items and services on certain farm machinery, attachment units, and irrigation equipment.
There are exempted from the provisions of this chapter and the tax imposed by it, the use of the following:
(1) Parts and repair services on farm machinery, attachment units, and irrigation equipment used exclusively for agricultural purposes which are exempt from the tax imposed by this chapter pursuant to § 10-46-17.7, if the part replaces a farm machinery, attachment unit, or irrigation equipment part assigned a specific or generic part number by the manufacturer of the farm machinery, attachment unit, or irrigation equipment; and
(2) Maintenance items and maintenance services used on farm machinery, attachment units, and irrigation equipment used exclusively for agricultural purposes which are exempt from the tax imposed by this chapter pursuant to § 10-46-17.7.
Source: SL 2002, ch 64, § 30, eff. Jan. 1, 2006; SL 2006, ch 47, § 2, eff. Mar. 2, 2006; SL 2015, ch 67, § 4.
10-46-17.7. Exemption for gross receipts from sale, resale, or lease of farm machinery, attachment units, and irrigation equipment.
There are exempted from the provisions of this chapter and from the tax imposed by it, gross receipts from the sale, resale, or lease of farm machinery, attachment units, and irrigation equipment used exclusively for agricultural purposes. The term, farm machinery, includes all-terrain vehicles of three or more wheels used exclusively by the purchaser for agricultural purposes on agricultural land. The purchaser shall sign and deliver to the seller a statement that the all-terrain vehicle will be used exclusively for agricultural purposes.
Source: SL 2006, ch 58, § 20.
10-46-17.8. Exemption of rental of devices used to apply agricultural fertilizers and pesticides.
There is specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the rental of devices primarily used to apply fertilizers and pesticides, as defined in § 38-20A-1, for agricultural purposes.
Source: SL 2006, ch 48, § 3.
10-46-18. Delivery in state as prima facie evidence of sale for use in state.
For the purpose of the proper administration of this chapter and to prevent the evasion of the tax, evidence that tangible personal property or any product transferred electronically was sold by any person for delivery in this state shall be prima facie evidence that the tangible personal property or the product transferred electronically was sold for use in this state.
Source: SL 1939, ch 276, § 5; SDC Supp 1960, § 57.4305; SL 2008, ch 51, § 50.
10-46-18.1. Use of service in state prima facie evidence of taxability.
For the purposes of proper administration of this chapter and to prevent evasion of tax, evidence that a service is used in this state shall be prima facie evidence that the service is subject to tax.
Source: SL 1979, ch 84, § 6E; SL 2003, ch 61, § 13.
10-46-18.2. Money paid as evidence of value of service--Reasonable value governs.
In determining the amount of tax due on the use of a service it is presumed, in the absence of preponderant evidence of another value, that the value means the total amount of money or the reasonable value of other consideration paid for the service exclusive of any type of time-price differential. However, in an exchange in which the amount paid does not represent the value of the service purchased, the tax shall be imposed on the reasonable value of the service purchased.
Source: SL 1979, ch 84, § 6F.
10-46-18.3. List of sales property or services to residents--Cost.
Any person selling property or services to residents of this state, where the property is delivered to this state or the beneficial use of the service occurs in this state, shall provide a list of such sales to the secretary of revenue. The list shall include the names and addresses of the purchasers and the amount of the sale. The secretary of revenue shall pay to any person furnishing a list under this section an amount equal to the reasonable cost of reproducing the list.
Source: SL 1987, ch 109, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-19. Manner of collection of tax.
The tax herein imposed shall be collected in the manner provided by §§ 10-46-23, 10-46-32, and 10-46-33.
Source: SL 1939, ch 276, § 6; SDC Supp 1960, § 57.4306.
10-46-20. Collection of tax by retailer maintaining place of business in state--Receipt given to purchaser--Agents and places of business listed with secretary.
Any retailer maintaining a place of business in this state, and making sales of tangible personal property, any product transferred electronically, or services for storage, use or other consumption in this state, not exempted under the provisions of §§ 10-46-6 to 10-46-17.5, inclusive, shall, at the time of making such sale, whether within or without the state, collect the tax imposed by this chapter from the purchaser, and give to the purchaser a receipt therefor in the manner and form prescribed by the secretary of revenue, if the secretary of revenue, by rule promulgated pursuant to chapter 1-26, requires a receipt. The retailer shall list with the secretary of revenue the name and address of all the retailer's agents operating in this state, and the location of any of the retailer's distribution or sales houses or offices or other places of business in this state.
Source: SL 1939, ch 276, § 7; SDC Supp 1960, § 57.4307; SL 1986, ch 105; SL 1987, ch 82, § 29; SL 1991, ch 107, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 51, § 51; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-21. Semiannual report of sales by retailer maintaining place of business in state--Contents.
Every retailer maintaining a place of business in this state and making sales of tangible personal property or any product transferred electronically for storage, use, or other consumption in this state, shall, twice annually furnish the secretary of revenue with a list, covering the six-month period just preceding the submission of such list, which shall contain the names and addresses of all persons within the State of South Dakota who have made purchases of tangible personal property or any product transferred electronically from the retailer for use, storage, or consumption. The list shall contain the total amount of the purchase price of all such personal property so purchased during the period by such persons. The list required to be submitted need not contain any information on the sale of tangible personal property or any product transferred electronically if exempt under §§ 10-46-6 to 10-46-15, inclusive.
Source: SL 1939, ch 276, § 7; SDC Supp 1960, § 57.4307; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 51, § 52; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-22. Permit for collection of tax by retailer not maintaining place of business in state--Security for collection and payment--Cancellation of permit.
The secretary of revenue may, upon application, authorize the collection of the tax imposed by this chapter by any retailer not maintaining a place of business within this state, who, to the satisfaction of the secretary of revenue furnishes adequate security to ensure collection and payment of the tax. The retailer shall be issued, without charge, a permit to collect the tax in such manner, and subject to such requirements as the secretary of revenue may prescribe by rule promulgated pursuant to chapter 1-26. If so authorized, the retailer shall collect the tax upon any tangible personal property or any product transferred electronically sold to the retailer's knowledge for use, storage, or other consumption within this state, in the same manner and subject to the same requirements as a retailer maintaining a place of business within this state. The authority and permit may be canceled if, at any time, the secretary of revenue considers the security inadequate, or that such tax can more effectively be collected from the person using the property in this state.
Source: SL 1939, ch 276, § 8; SDC Supp 1960, § 57.4308; SL 1987, ch 82, § 30; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 51, § 53; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-23. Collection and remittance of tax by retailer.
The tax upon the use, storage, or other consumption of all tangible personal property or any product transferred electronically which is sold by a retailer maintaining a place of business in this state, or by such other retailer as the secretary of revenue shall authorize pursuant to § 10-46-22, shall be collected by the retailer and remitted to the Department of Revenue pursuant to the provisions of §§ 10-46-24 to 10-46-31, inclusive.
Source: SL 1939, ch 276, § 6 (1); SDC Supp 1960, § 57.4306 (1); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 51, § 54; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-24. Surety bond filed by retailer.
The secretary of revenue may, when in his judgment it is necessary and advisable to do so in order to ensure the collection of the tax levied under this chapter, authorize any person subject to such tax, and any retailer required or authorized to collect such tax pursuant to the provisions of §§ 10-46-20 to 10-46-22, inclusive, to file with him a bond issued by a surety company authorized to transact business in this state and approved by the secretary of revenue, in such amount as the secretary of revenue may fix, to secure the payment of any tax or penalties due or which may become due from such person.
Source: SL 1939, ch 276, § 13; SDC Supp 1960, § 57.4312; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-25. Securities deposited by retailer in lieu of bond.
In lieu of such bond, securities approved by the secretary of revenue, in such amount as he may prescribe, may be deposited with him, which securities shall be kept in the custody of the secretary of revenue and may be sold by him at public or private sale, without notice to the depositor thereof, if it becomes necessary to do so in order to recover any tax or penalties due. Upon any such sale, the surplus, if any, above the amounts due under this chapter shall be returned to the person who deposited the securities.
Source: SL 1939, ch 276, § 13; SDC Supp 1960, § 57.4312; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-26. Tax collected as debt of retailer.
The tax required to be collected by any retailer pursuant to §§ 10-46-20 to 10-46-22, inclusive, and any tax collected by any retailer pursuant to said sections, shall constitute a debt owed by the retailer to this state.
Source: SL 1939, ch 276, § 10; SDC Supp 1960, § 57.4309; SL 1991, ch 107, § 3.
10-46-27.1. Time for filing of return and payment of tax--Extension.
Any person required to pay or any retailer required or authorized, pursuant to this chapter, to collect the tax imposed by this chapter shall, except as otherwise provided in this section, file a return, and pay any tax due, to the Department of Revenue on or before the twentieth day of the month following each monthly period. The return shall be filed on forms prescribed and furnished by the department.
If the person or retailer remits the tax by electronic transfer to the state, the return shall be filed by electronic means on or before the twentieth day of the month following each period and remit the tax on or before the twenty-fifth day of the month following each period.
The secretary may require or allow a person or retailer to file a return, and pay any tax due, on a basis other than monthly. The return and remittance is due the twentieth day of the month following the reporting period or at a time otherwise determined by the secretary.
The secretary may grant an extension of not more than five days for filing a return and remittance. However, the secretary may grant an extension for remitting the tax to a qualified business as provided in §§ 10-45-99 to 10-45-107, inclusive, for six months.
Unless an extension is granted, any penalty or interest under § 10-59-6 shall be paid if a return or remittance is not made on time.
Source: SL 2010, ch 64, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2017, ch 65, § 3.
10-46-28. Contents of return--Remittance.
At the time specified in § 10-46-27.1, the person or retailer shall file with the secretary a return for the preceding reporting period in a form prescribed by the secretary showing the sales price of any tangible personal property, any product transferred electronically, or services sold by the retailer during the preceding reporting period, the use, storage, or consumption of which is subject to the tax imposed by this chapter, and such other information as the secretary deems necessary for the proper administration of this chapter. Each return shall be accompanied by a remittance of the amount of such tax for the period covered by the return.
Source: SL 1939, ch 276, § 11; SDC Supp 1960, § 57.4310; SL 1981, ch 106, § 6; SL 1984, ch 91, § 3; SL 2003, ch 272, § 82; SL 2008, ch 51, § 55; SL 2010, ch 64, § 3.
10-46-30. Execution of retailers' returns.
Returns shall be signed by the retailer or his duly authorized agent, and must be certified by him to be correct.
Source: SL 1939, ch 276, § 11; SDC Supp 1960, § 57.4310.
10-46-31. Amounts of tax paid on conditional sales or installment contract receipts.
If tangible personal property or any product transferred electronically is sold under a conditional sales contract, or under any other form of sale wherein the payment of the principal sum, or a part thereof, is extended over a period longer than sixty days from the date of the sale thereof, the retailer may collect and remit for each month that portion of the tax equal to the rate of tax as provided for in this chapter of that portion of the purchase price actually received during the month.
Source: SL 1939, ch 276, § 11; SDC Supp 1960, § 57.4310; SL 2001, ch 56, § 12; SL 2008, ch 51, § 56.
10-46-32. Collection of tax by deduction from motor fuel tax refunds.
The tax imposed by this chapter upon those sales of motor vehicle fuel which are subject to tax under this chapter, shall be collected by the state auditor by way of deduction of refunds otherwise allowable under the provisions of the South Dakota statutes applicable thereto. The state auditor shall, when issuing a warrant in payment of any refund claimed under chapter 10-47B after the application for said refund has been approved by the secretary of revenue, first cause to be determined the amount of tax due imposed by this chapter on the purchase price of the motor fuel on which the refund is claimed and shall issue the warrant for refund in the amount claimed after deducting the amount of tax due on the purchase price of said motor fuel that is imposed by this chapter and shall issue a warrant to the Department of Revenue once each month for the total amount of the deduction made from such refunds and the secretary of revenue shall employ the necessary clerical help, auditors or bookkeepers to aid the said state auditor to determine the correct amount due under this chapter upon those sales of motor vehicle fuel upon which an application for refund of the motor fuel tax is made.
Source: SL 1939, ch 276, § 6 (2); SDC Supp 1960, § 57.4306 (2); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-33. Direct payment of tax by user.
The tax upon the use, storage, or consumption of any tangible personal property or any product transferred electronically not paid pursuant to §§ 10-46-23 and 10-46-32 shall be paid to the secretary of revenue directly by any person using such property within this state, pursuant to the provisions of § 10-46-34.
Source: SL 1939, ch 276, § 6 (3); SDC Supp 1960, § 57.4306 (3); SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 51, § 57; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-34. Liability of user for tax--Returns and payments.
Any person who uses, stores, or otherwise consumes any property or services subject to tax by this chapter upon which the tax has not been paid, either to a retailer or direct to the secretary as provided by this chapter, is liable therefor, and shall, on or before the time specified in § 10-46-27.1, pay the tax upon all such property used by the person during the preceding month in such manner and accompanied by such returns as required by § 10-46-27.1. All of the provisions of §§ 10-46-27.1 to 10-46-31, inclusive, with reference to such returns and payments are applicable to the returns and payments required by this chapter.
Source: SL 1939, ch 276, § 12; SDC Supp 1960, § 57.4311; SL 1981, ch 106, § 8; SL 1984, ch 91, § 4; SL 2003, ch 272, § 82; SL 2010, ch 64, § 5.
10-46-34.1. Credit for sales or use tax paid to another state--Reciprocal grant of credit required.
The amount of use tax imposed with respect to tangible personal property and any product transferred electronically in the form of equipment brought into this state on a permanent basis for direct use in a manufacturing, fabricating, or processing business shall be reduced by the amount of any sales or use tax previously paid by the taxpayer with respect to the property on account of liability to another state or its political subdivisions to the extent that such tax equals or exceeds the rate of the tax in this state. If the sales or use tax of the other state is less than the tax of this state, the taxpayer shall be subject to the payment of the balance to this state. No credit may be given under this section for taxes paid on tangible personal property or any product transferred electronically subject to the credit of this section in another state or its political subdivisions if that state does not reciprocally grant a credit for taxes paid on similar tangible personal property or any product transferred electronically in this state.
Source: SL 1968, ch 261; SL 2008, ch 51, § 58.
10-46-35.1. Promulgation of rules.
The secretary of revenue may promulgate rules pursuant to chapter 1-26 concerning:
(1) Licensing, including bonding and filing license applications;
(2) The filing of returns and payment of the tax;
(3) Determining the application of the tax and exemptions;
(4) Taxpayer record-keeping requirements; and
(5) Determining auditing methods.
Source: SL 1987, ch 82, § 28; SL 1995, ch 53, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-37. False or fraudulent return in attempt to evade tax as misdemeanor.
Any person required to make, render, sign, or certify any return or supplementary return who makes any false or fraudulent return in attempt to defeat or evade the tax imposed by this chapter is guilty of a Class 1 misdemeanor.
Source: SL 1939, ch 276, § 16; SDC Supp 1960, § 57.9945; SL 1982, ch 86, § 40.
10-46-38. Failure to file return as misdemeanor.
Any retailer or other person failing or refusing to furnish any return by this chapter required to be made or failing or refusing to furnish a supplemental return or other data required by the secretary of revenue is guilty of a Class 1 misdemeanor.
Source: SL 1939, ch 276, § 17; SDC Supp 1960, § 57.9946; SL 1981, ch 106, § 9; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-39. Administration and enforcement--Sales tax procedural and collection provisions applicable.
The secretary of revenue shall enforce and administer this chapter in the same manner and subject to all of the provisions contained in chapter 10-45. Sections 10-45-22, 10-45-29, 10-45-30, and 10-45-37 to 10-45-45, inclusive, are by reference incorporated as part of this chapter.
Source: SL 1939, ch 276, § 20; SDC Supp 1960, § 57.4317; SL 1978, ch 70, § 8; SL 1980, ch 99, § 7; SL 1981, ch 106, § 2; SL 2001, ch 56, § 13; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-40. Rules for administration--Uniformity of application.
The secretary of revenue may promulgate rules pursuant to chapter 1-26 for the administration and enforcement of this chapter and for adding such tax, or the average equivalent thereof, providing this method applies uniformly to retailers within the same general classification for the purpose of enabling such retailers to add and collect, as far as practical, the amount of such tax.
Source: SL 1939, ch 276, § 9; SDC Supp 1960, § 57.9944; SL 1987, ch 82, § 31; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-41. Determination of tax by secretary in absence of correct return.
If any return required by this chapter is not filed, or if any return when filed is incorrect or insufficient, and the maker or person from whom it is due fails to file a corrected or sufficient return within ten days after the same is required by notice from the secretary, the secretary shall determine the amount due pursuant to § 10-59-10.
Source: SL 1939, ch 276, § 14; SDC Supp 1960, § 57.4313; SL 1986, ch 111, §§ 27, 30; SL 2003, ch 272, § 82; SL 2010, ch 64, § 6.
10-46-42. Secretary's certificate as prima facie evidence of failure to file return or pay tax.
The certificate of the secretary of revenue to the effect that a tax or amount required to be paid by this chapter has not been paid, that a return has not been filed, or that information has not been supplied pursuant to the provisions of this chapter shall be prima facie evidence thereof.
Source: SL 1939, ch 276, § 15; SL 1953, ch 472; SL 1955, ch 420; SDC Supp 1960, § 57.4314; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-43. Records maintained by retailers and users--Examination and investigations by secretary--Access to records.
Each retailer required or authorized to collect taxes imposed by this chapter and each person using, storing or otherwise consuming in this state tangible personal property or any product transferred electronically purchased on or after July 1, 1939, shall keep such records, receipts, invoices, and other pertinent papers as the secretary of revenue shall require, in such form as the secretary of revenue shall require. The secretary of revenue and any of the secretary's duly authorized agents may examine the books, papers, records, and equipment of any person either selling tangible personal property or products transferred electronically or liable for the tax imposed by this chapter, and investigate the character of the business of any such person in order to verify the accuracy of any return made, or if the return was made by such person, to ascertain and determine the amount due under the provisions of this chapter. Any such books, papers, and records shall be made available within this state for such examination upon reasonable notice if the secretary of revenue deems it advisable and so orders.
Source: SL 1939, ch 276, § 18; SDC Supp 1960, § 57.4315; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 51, § 59; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-44. Revocation of retailer's sales tax permit on failure to comply--Revocation of corporate authority to do business.
If any retailer maintaining a place of business in this state, who is authorized to collect the tax imposed pursuant to § 10-46-22, fails to comply with any of the provisions of this chapter or any orders or rules of the secretary of revenue prescribed and adopted under this chapter, the secretary of revenue may, upon notice and hearing as hereinafter provided, by order revoke the permit, if any, issued to such retailer under § 10-45-25, or if such retailer is a corporation authorized to do business in this state, may certify to the secretary of state a copy of an order finding that such retailer has failed to comply with certain specified provisions, orders or rules. The secretary of state shall, upon receipt of such certified copy, revoke the permit authorizing said corporation to do business in this state, and shall issue a new permit only when such corporation has obtained from the secretary of revenue an order finding that said corporation has complied with its obligations under this chapter.
Source: SL 1939, ch 276, § 19; SDC Supp 1960, § 57.4316; SL 1987, ch 82, § 32; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-45. Notice and hearing on revocation of permit or authority to do business.
No order authorized in § 10-46-44 shall be made until the retailer is given an opportunity to be heard and show cause why such order should not be made, and shall be given ten days' notice of the time, place and purpose of such hearing. Such notice shall be served in the manner provided for service of summons in civil actions.
Source: SL 1939, ch 276, § 19; SDC Supp 1960, § 57.4316.
10-46-46. Restoration of revoked sales tax permit.
The secretary of revenue shall also have the power to restore such licenses after such revocation in his discretion.
Source: SL 1939, ch 276, § 19; SDC Supp 1960, § 57.4316; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-47.1. Personal liability of officers, managers, or partners of entity failing to file returns or pay tax--Security in lieu of liability--Bonded municipal officials exempt.
If a corporation, limited liability company, limited partnership, limited liability partnership, or limited liability limited partnership subject to tax under this chapter fails for any reason to file the required returns or to pay the tax due, any of the corporate officers, member-managers or managers of limited liability companies, or partners of partnerships that control, supervise, or are charged with the responsibility of filing the returns or remitting tax payments shall be personally liable for the failure. The dissolution of a corporation, limited liability company, limited partnership, limited liability partnership, or limited liability limited partnership does not discharge an officer, member-manager, manager, or partner's liability for a prior failure of the corporation, limited liability company, limited partnership, limited liability partnership, or limited liability limited partnership to file a return or remit the tax due. The sum due for such a liability may be assessed and collected as provided by law.
If the corporate officers, limited liability company member-managers or managers, or partners elect not to be personally liable for the failure to file the required returns or to pay the tax due, the corporation, limited liability company, limited partnership, limited liability partnership, or limited liability limited partnership shall provide the Department of Revenue with a surety bond or certificate of deposit as security for payment of any tax that may become due. The bond or certificate of deposit provided for in this section shall be in an amount equal to the estimated annual gross receipts multiplied by the applicable sales or excise tax rate. This section does not apply to elected or appointed officials if bonded pursuant to §§ 9-14-6 and 9-14-6.1.
Source: SL 1981, ch 105; SL 1982, ch 120, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2009, ch 49, § 3; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-48. Revenue credited to general fund.
All revenue arising under the operation of this chapter shall immediately be turned over to the state treasurer and by him credited to the general fund.
Source: SL 1939, ch 276, § 21; SDC Supp 1960, § 57.4318.
10-46-50. Floor laying service subject to tax.
The following service enumerated in the Standard Industrial Classification Manual of 1987 as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President, is subject to the tax levied by this chapter: industry no. 1752 floor laying and other floor work, not elsewhere classified.
Source: SL 1991, ch 108, § 6.
10-46-51. Exemption of large boats subject to excise tax.
Any large boat as defined by § 32-3A-2 is hereby exempted from the tax imposed by this chapter if subject to the tax imposed by § 32-3A-50.
Source: SL 1993, ch 102, § 15A; SL 2001, ch 56, § 15.
10-46-52. Exemption of gaming proceeds.
There are specifically exempted from the provisions of this chapter and from the computation of the tax imposed by it gross proceeds of gaming allowed by chapter 42-7B.
Source: SL 1994, ch 331, § 3.
10-46-55. Exemption of natural gas transportation services by pipeline.
The provision of natural gas transportation services by a pipeline is exempt from the provisions of this chapter and from the computation of the tax imposed by this chapter.
Source: SL 1994, ch 99, § 2.
10-46-56. Exemption for the use of credit card processing services.
There are specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the use of credit card processing services by retailers.
Source: SL 1994, ch 100, § 2.
10-46-58. Passenger transportation tax imposed--Transportation within state.
There is imposed a tax of four and two-tenths percent on the privilege of the use of any transportation of passengers. The tax imposed by this section applies to any transportation of passengers if the passenger boards and exits the mode of transportation within this state.
Source: SL 1996, ch 83, § 4; SL 2016, ch 65, § 11, eff. June 1, 2016; SL 2023, ch 32, § 11.
Effective June 30, 2027
10-46-58. Passenger transportation tax imposed--Transportation within state.
There is imposed a tax of four and one-half percent on the privilege of the use of any transportation of passengers. The tax imposed by this section shall apply to any transportation of passengers if the passenger boards and exits the mode of transportation within this state.
Source: SL 1996, ch 83, § 4; SL 2016, ch 65, § 11, eff. June 1, 2016; SL 2023, ch 32, §§ 11, 19.
10-46-59. Inapplicability of tax.
The tax imposed by § 10-46-58 does not apply to any transportation service which the state is prohibited from taxing by federal law or the United States Constitution.
Source: SL 1996, ch 83, § 6; SL 2004, ch 94, § 13.
10-46-62. Gross receipts from charge of interest exempted.
There are exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the gross receipts from the charge of interest as defined in § 54-3-1.
Source: SL 1996, ch 88, § 2.
10-46-63. Exemption for use of certain rodeo services.
There are exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the use of services provided by promoters, stock contractors, stock handlers, announcers, judges, and clowns.
Source: SL 1996, ch 85, § 2.
10-46-64. Exemption of repair shops, locksmiths, locksmith shops, and lock parts.
The following services enumerated in the Standard Industrial Classification Manual of 1987 as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President, are subject to the tax levied by this chapter: repair shops and related services, not elsewhere classified (industry no. 7699) but only locksmiths, locksmith shops, and lock parts made to individual order.
Source: SL 1998, ch 71, § 6.
10-46-65. Exemptions.
There are hereby exempted from the provisions of this chapter and the computation of the tax imposed by it, the use of United States postage.
Source: SL 1998, ch 69, § 2.
10-46-66. Retail sales include auctions, consignments, products transferred electronically, and services--Responsibilities of auction clerk and auctioneer.
All auction sales and consignment sales of tangible personal property, any product transferred electronically, and services are sales at retail. The auction clerk shall file the return and remit the tax imposed by this chapter on the gross receipts from each auction after applying the deductions provided by § 10-45-92. However, the auctioneer is responsible for the payment of the tax imposed by this chapter if the auction clerk is an employee of the auctioneer or if the auction clerk does not have a permit as required by this chapter. In addition to any other information required to be kept by this chapter, each auction clerk shall keep records that identify the owner of the property sold at auction and the auctioneer who conducts the sale of such property.
Source: SL 2000, ch 63, § 2; SL 2008, ch 51, § 60.
10-46-67. Department authorized to issue direct payment permits to certain retailers--Application procedure--Direct payment permit defined--Liability for sales tax on sale to permit holder--Promulgation of rules.
The secretary of revenue may authorize a retailer to use a direct payment permit if the retailer purchases goods or services subject to the tax imposed by chapter 10-45. Applicants for a direct payment permit shall apply in writing to the secretary. A retailer may appeal the denial of a direct payment permit or contest a revocation of a direct payment permit pursuant to chapters 1-26 and 1-26D. For purposes of this section, the term, direct payment permit, means a permit issued by the department that allows a holder of the permit to accrue and pay the taxes imposed by chapter 10-45 directly to the department. A retailer that makes a sale to a direct payment permit holder has no liability for sales tax on such sale if the retailer has written evidence of the sale. Such written evidence shall clearly indicate the name of the buyer, the product or service purchased, and the amount of the purchase. The secretary of revenue may promulgate rules pursuant to chapter 1-26 concerning the administration and use of a direct payment permit.
Source: SL 2001, ch 58, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
10-46-68. Exemption for lodging house or hotel membership fees.
There are hereby exempted from the provisions of this chapter and the computation of the tax imposed by it, gross receipts from membership fees paid to any lodging house and hotel membership organization operated for the benefit of its members. However, this exemption does not apply to any membership fee that represents payment for tangible personal property, any product transferred electronically, and services provided by the membership organization.
Source: SL 2001, ch 55, § 2; SL 2008, ch 51, § 61.
10-46-69. Tax on use of certain mobile telecommunications services.
There is hereby imposed a tax of four and two-tenths percent upon the privilege of the use of mobile telecommunications services, as defined in 4 U.S.C. § 124(7) as of January 1, 2002, that originate and terminate in the same state and are billed to a customer with a place of primary use in this state. Notwithstanding any other provision of this chapter and for purposes of the tax imposed by this section, the tax imposed upon mobile telecommunication services must be administered in accordance with 4 U.S.C. §§ 116-126, as in effect on July 28, 2000.
Source: SL 2002, ch 61, § 2; SL 2016, ch 65, § 12, eff. June 1, 2016; SL 2023, ch 32, § 12.
Effective July 1, 2027
10-46-69. Tax on use of certain mobile telecommunications services.
There is hereby imposed a tax of four and one-half percent upon the privilege of the use of mobile telecommunications services, as defined in 4 U.S.C. § 124(7) as of January 1, 2002, that originate and terminate in the same state and are billed to a customer with a place of primary use in this state. Notwithstanding any other provision of this chapter and for purposes of the tax imposed by this section, the tax imposed upon mobile telecommunication services shall be administered in accordance with 4 U.S.C. §§ 116-126 as in effect on July 28, 2000.
Source: SL 2002, ch 61, § 2; SL 2016, ch 65, § 12, eff. June 1, 2016; SL 2023, ch 32, §§ 12, 19.
10-46-69.1. Tax on use of certain mobile telecommunications services.
Except as provided in § 10-46-69, there is hereby imposed a tax of four and two-tenths percent upon the privilege of the use of any intrastate, interstate, or international telecommunications service that originates or terminates in this state and that is billed or charged to a service address in this state, or that both originates and terminates in this state. However, the tax imposed by this section does not apply to:
(1) Any eight hundred or eight hundred type service unless the service both originates and terminates in this state;
(2) Any sale of a telecommunication service to a provider of telecommunication services, including access service, for use in providing any telecommunication service; or
(3) Any sale of interstate telecommunication service provided to a call center that has been certified by the secretary of revenue to meet the criterion established in § 10-45-6.3 and the call center has provided to the telecommunications service provider an exemption certificate issued by the secretary indicating that it meets the criterion.
If a call center uses an exemption certificate to purchase services not meeting the criterion established in § 10-45-6.3, the call center is liable for the applicable tax, penalty, and interest.
Source: SL 2009, ch 47, § 7; SL 2011, ch 1 (Ex. Ord. 11-1), § 35, eff. Apr. 12, 2011; SL 2016, ch 65, § 13, eff. June 1, 2016; SL 2023, ch 32, § 13.
Effective July 1, 2027
10-46-69.1. Tax on intrastate, interstate, or international telecommunications service--Exemptions.
Except as provided in § 10-46-69, there is hereby imposed a tax of four and one-half percent upon the privilege of the use of any intrastate, interstate, or international telecommunications service that originates or terminates in this state and that is billed or charged to a service address in this state, or that both originates and terminates in this state. However, the tax imposed by this section does not apply to:
(1) Any eight hundred or eight hundred type service unless the service both originates and terminates in this state;
(2) Any sale of a telecommunication service to a provider of telecommunication services, including access service, for use in providing any telecommunication service; or
(3) Any sale of interstate telecommunication service provided to a call center that has been certified by the secretary of revenue to meet the criterion established in § 10-45-6.3 and the call center has provided to the telecommunications service provider an exemption certificate issued by the secretary indicating that it meets the criterion.
If a call center uses an exemption certificate to purchase services not meeting the criterion established in § 10-45-6.3, the call center is liable for the applicable tax, penalty, and interest.
Source: SL 2009, ch 47, § 7; SL 2011, ch 1 (Ex. Ord. 11-1), § 35, eff. Apr. 12, 2011; SL 2016, ch 65, § 13, eff. June 1, 2016; SL 2023, ch 32, §§ 13, 19.
10-46-69.2. Tax on ancillary services.
There is hereby imposed a tax of four and two-tenths percent upon the privilege of the use of any ancillary services.
Source: SL 2009, ch 47, § 8; SL 2016, ch 65, § 14, eff. June 1, 2016; SL 2023, ch 32, § 14.
Effective July 1, 2027
10-46-69.2. Tax on ancillary services.
There is hereby imposed a tax of four and one-half percent upon the privilege of the use of any ancillary services.
Source: SL 2009, ch 47, § 8; SL 2016, ch 65, § 14, eff. June 1, 2016; SL 2023, ch 32, §§ 14, 19.
10-46-70. Exemption of receipts received by the state and political subdivisions from management services provided to nonprofit entity.
There are hereby exempted from the provisions of this chapter and the computation of the tax imposed by it, the gross receipts received by the State of South Dakota and any of its political subdivisions including multi-county planning and development districts, established pursuant to Executive Order 70-7, or its successor, from management services provided to a revolving loan fund operated by a nonprofit entity.
Source: SL 2005, ch 75, § 2.
10-46-71. Exemption for sale of coins, currency, or bullion.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of coins, currency, or bullion. For the purposes of this section, the term, bullion, means any bar, ingot, or commemorative medallion of gold, silver, platinum, palladium, or a combination of these metals where the value of the metal depends on its content and not the form. For the purposes of this section, the terms, coins and currency, mean any coins or currency made of gold, silver, or other metal or paper which is or has been used as legal tender.
Source: SL 2007, ch 60, § 2.
10-46-72. Relief from liability for failing to report tax at new rate--Conditions.
A retailer is relieved of any liability for failing to report a tax pursuant to this chapter at the new effective rate if the state fails to provide a period of at least thirty days between enactment of the statute providing for a rate change and the effective date of the rate change if:
(1) The retailer reported the tax at the immediately preceding effective rate; and
(2) The retailer's failure to report at the newly effective rate does not extend beyond thirty days after the date of enactment of the new rate.
This section does not apply if the retailer fraudulently failed to report the tax at the new rate.
Source: SL 2010, ch 60, § 2.
10-46-73. Exemption for nonprofit corporations created for fire protection.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the purchases of tangible personal property, any product transferred electronically, and services by any nonprofit corporation created for the purpose of fire protection that is controlled by any political subdivision of this state.
Source: SL 2016, ch 66, § 2.
10-46-74. Exemption--Coaches.
There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, the gross receipts for coaching services performed for youth or amateur sports when the gross receipts for the coaching services total less than four thousand dollars in any calendar year. For purposes of this section, a youth or amateur sport is any sport in which the participants are aged nineteen or younger and do not receive compensation for participation.
Source: SL 2022, ch 33, § 2; SL 2024, ch 39, § 6.
