ARSD Article 64:06 — SALES TAX

REVENUE REVENUE

Chapter 64:06:01 Administration of program

ARSD 64:06:01:00 Definitions

The terms used in this chapter mean:

(1) "Transitory business," a business which engages in the vending, distribution, or sale of tangible personal property or products transferred electronically, or renders services at any place in the state for less than 45 days and does not become a permanent and continuous business in this state;

(2) "Seasonal business," a business which is carried on only during certain seasons or during definite segments of the year, not throughout an entire year;

(3) "Transient solicitor," a person who engages in the vending, distribution, or sale of tangible personal property or products transferred electronically, or renders services at any place in the state temporarily and is not a resident of this state.

Declaratory Rulings: Receipts from the sale of membership cards, which are required before individuals may shop for groceries in warehouse stores and which may be exchanged for merchandise worth approximately one-half of the value of the card, are not exempt from the sales tax which must be paid on the full cost of the membership cards. Secretary of Revenue Declaratory Ruling No. 80-8.

Production of bedding and ornamental plants in a greenhouse is not an "agricultural purpose," as defined in SDCL 10-45-1(8), and fuel used to heat the greenhouse is subject to the sales tax. Secretary of Revenue Declaratory Ruling 81-7.

History

Source: 2 SDR 40, effective December 8, 1975; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3), 10-46A-19(3), 10-46B-18(3).
Law Implemented: SDCL 10-1-13.

ARSD 64:06:01:01 Armed services personnel and veterans

Gross receipts from retail sales to persons in the armed services of the United States are subject to sales tax regardless where the merchandise is received. The fact that receipt is within a military reservation does not affect taxability of gross receipts derived from the transaction. Gross receipts from retail sales to all veterans are subject to sales tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2.

ARSD 64:06:01:01.01 Sales to or by the United States army and its instrumentalities upon military reservations

Sales tax does not apply to service organizations operating exclusively within a federal area over which the state of South Dakota has conceded all jurisdiction to the United States government. Sales to or by post exchanges, officers' clubs, mess, and noncommissioned officers' clubs and all other voluntary unincorporated organizations of army personnel authorized by the secretary of defense, or sales made by such organizations to any authorized purchaser, are also exempt. The term "authorized purchaser" includes those persons who are permitted to purchase from such organizations under regulations issued by the secretary of defense.

Sales to persons in the armed forces of the United States, including civilian employees in such service, are not exempt from sales tax, unless such sales are made to them as an authorized purchaser by a service organization exclusively within a United States military reservation and authorized by the secretary of defense.

Declaratory Ruling: The sales tax exemption from receipts of sales of tangible personal property to governmental agencies also applies to the gross receipts from sales of services to governmental entities. Secretary of Revenue Declaratory Ruling No. 79-3.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 64:06:01:47, 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-10.

ARSD 64:06:01:01.02 Sales to governmental agencies

Before purchases by a government or its subdivisions are exempted by the department, proof is required from the retailer that such sales were actually paid out of government funds or that the governmental agency provided an exemption certificate to the retailer.

No special exemption certificate is necessary when making sales to the United States, tribal governments, the District of Columbia, the State of South Dakota, other states, and their subdivisions if the billing or invoices indicate such sales and the records show that payment was received from the exempt governmental entity or that the purchases were made by a credit card issued to and in the name of the exempt governmental entity.

State boards and commissions created by law are exempt from sales or use tax. Boards and commissions created by legislative act are part of state government and sales to any board or commission are sales to the state.

Court Decisions: A nonprofit corporation exempt from federal income tax, which provides free legal service to persons of low income and is funded by the federal government, qualifies as a relief agency under SDCL 10-45-10 and does not have to meet each factor enumerated in § 64:06:01:38. East River Legal Services vs State, Department of Revenue , 303 N.W. 2d 379 (March 18, 1981).

A nonprofit corporation exempt from federal income taxes, which provides health and nutrition services for the elderly; education and development services for "headstart" and day care for children; weatherization, self-help gardens, and fuel assistance services for low income and elderly families; employment services for low income persons; and assistance and guidance to low income persons for community development, all without cost to recipients except for certain day care services, the activities of which are financed by the federal government, qualifies as a relief agency and is exempt from having to pay sales tax. Western South Dakota Community Action Program, Inc. vs State, Department of Revenue , 303 N.W. 2d 379 (March 18, 1981).

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 8 SDR 81, effective January 10, 1982; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 64:06:01:48, 16 SDR 76, effective November 1, 1989; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; 22 SDR 6, effective July 23, 1995; 29 SDR 177, effective July 2, 2003; 30 SDR 58, effective November 5, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-10.

ARSD 64:06:01:01.03 Sales by United States government

The United States government is not required to collect tax from the purchaser when making sales otherwise subject to sales tax unless the United States Congress has provided otherwise. Persons making purchases from the government of the United States or from any of the exempt agencies of tangible personal property, any product transferred electronically, and services that are subject to sales or use tax must report and pay sales or use tax measured by the purchase price unless the purchases are otherwise exempt.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 64:06:01:52, 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-10, 10-46-4.

ARSD 64:06:01:01.04 Public and municipal corporations

Gross receipts from sales to public or municipal corporations are exempt from sales tax. A public corporation or municipal corporation is one created by the state or a municipality, pursuant to authority granted by South Dakota law, for political purposes to act as an agency in the administration of civil government. The following are indicia of a public corporation or of a municipal corporation:

(1) It performs a governmental function;

(2) It is a nonprofit organization exempt from federal income tax;

(3) It is licensed or chartered by a division of state or local government;

(4) It is subject to inspection and audit accomplished or reviewed by a division of state or local government; and

(5) Some statutory provision is made for the levy of state or local taxes for funding of some activity of the organization or for authority to spend funds raised by taxation.

Declaratory Rulings: The sales tax exemption from receipts of sales of tangible personal property to governmental agencies also applies to the gross receipts from sales of services to governmental entities. Secretary of Revenue Declaratory Ruling No. 79-3.

Public alcohol treatment facilities approved and funded by the state division of alcoholism are not political subdivisions of the state and are not exempt from sales tax. Secretary of Revenue Declaratory Ruling No. 80-4.

History

Source: 2 SDR 40, effective December 8, 1975; 5 SDR 60, effective January 25, 1979; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 64:06:01:57, 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-10.

ARSD 64:06:01:02 Bond

A cash bond endorsed in the name of the department or a bond issued by a corporate surety company authorized to do business in South Dakota in an amount sufficient to guarantee payment of tax for a six-month period is required from retailers engaged in business within the state of South Dakota in the following circumstances:

(1) A taxpayer is delinquent in either reporting or paying tax for two reporting periods in any twelve-month period;

(2) A taxpayer is engaged in a type of business which, in the experience of the department, has had problems with tax delinquency; or

(3) A taxpayer does not have sufficient unencumbered assets in this state to ensure that a possible future delinquent tax liability is collected.

If a taxpayer has no prior history of tax payment, the amount of the bond is based upon the taxpayer's estimate of gross receipts in a six-month period, provided that the taxpayer's estimate is determined by the department to approximate known receipts of similar businesses.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 5 SDR 60, effective January 25, 1979; 9 SDR 28, effective September 5, 1982; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45-26, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:03 Repealed

Bad debt deduction.** Repealed.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 5 SDR 60, effective January 25, 1979; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:03.01 Bad checks

A check which is returned unpaid because of nonsufficient funds (NSF) or no account and which is not collected by the retailer may be taken as a bad debt deduction, or may be considered a reduction in gross receipts.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 1, 2003; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3), 10-45D-13(3), 10-46E-11(2), 10-52A-7(3).
Law Implemented: SDCL 10-45-1.14, 10-45-30, 10-45D-2, 10-46E-8, 10-52A-1.1.

ARSD 64:06:01:03.02 Collection of a previously deducted bad debt or bad check

If a previously deducted bad debt is collected or a check that was returned because of nonsufficient funds (NSF) or no account and not included as part of gross receipts is collected, the tax on the amount collected must be paid and reported on the return filed for the period in which the collection is made. For the purposes of reporting a payment received on a previously claimed bad debt, any payments made on such debt or account are applied first proportionally to the taxable price of the property or service and the sales tax thereon, and secondly to interest, service charges, and any other charges. No deductions for collection expenses are permitted. If a bad debt is sold to a collection agency, only the amount received may be included on the next sales tax return.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 31 SDR 214, effective July 6, 2005.
General Authority: SDCL 10-45-47.1(2).
Law Implemented: SDCL 10-45-30.

ARSD 64:06:01:04 Repealed

Bottle deposits.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:01:05 Change in ownership

If the ownership status of a business which holds a tax permit changes from one type of business ownership such as sole proprietor, partnership, or corporation to another type of business ownership, a new tax permit is required. The new owner must apply for the new permit.

A new tax permit is required for corporations which are sold or transferred only if ownership of the business is transferred to a different corporation or other owner.

A new permit is not required for partnerships if one or more partners listed on the permit enters or leaves the partnership and the business continues to be operated under the partnership form. Those partners listed on the permit remain liable until the department is notified, in writing, of a change in the status of any partner. A new partner is automatically held liable for any partnership tax obligations to the state.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:06 Casual or occasional sales

Casual or occasional sales made by an individual who is not engaged in the business of selling at retail are not subject to the tax. Tax applies on sales made in the course of a regularly conducted retail business.

Unless sales are of such a number, volume, or frequency as to indicate evasion of the tax, they are not taxable. A jobber or wholesaler who sells direct to a consumer is a retailer for that portion of the jobber's or wholesaler's business.

Each case must stand upon its own facts, but good faith is required. Taxability is the rule rather than the exception, and the rule of reason applies.

Examples:

(1) A and her family are moving so she decides to sell some household items before leaving. She advertises that she is having a garage sale. She sells many of the things she advertised. She does not have to collect or remit sales tax on these items as she is a casual or occasional seller.

(2) Every summer B grows vegetables which he sells at a roadside stand. He must collect and remit sales tax on these sales as he is not a casual or occasional seller, but rather holds himself out to the public as a retailer.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:01:07 Issuance and use of permits restricted

A tax permit cannot be issued to a person solely for the purpose of permitting the person to buy at wholesale or to buy without payment of tax to the seller of property or services taxable under SDCL chapter 10-45, 10-45D, 10-46, 10-52, or 10-52A.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 2, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-2, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:07.01 Application for tax permit

All applicants for a tax permit shall include on the application form, in addition to the requirements set forth in SDCL 10-45-24, the following:

(1) The applicant's social security number, if the individual is the sole owner, and the applicant's federal identification number if the internal revenue service requires a federal identification number;

(2) The applicant's home and business telephone number;

(3) The type of business, with a brief description of that business;

(4) The type of license requested;

(5) The beginning date of business;

(6) Whether it is a new business;

(7) An estimated monthly taxable gross in this state;

(8) The type of accounting method used;

(9) The type of ownership;

(10) If it is a corporation, the date of incorporation;

(11) If not a South Dakota corporation, the date registered with the secretary of state;

(12) The names, addresses, and social security numbers of all principal officers if the business is a corporation or of all principal partners if the business is a partnership; and

(13) Other information required by the secretary to identify the business and the activities of the business.

History

Source: 17 SDR 4, effective July 18, 1990; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 2, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:07.02 Requirements for statewide tax permit

The department may only issue a statewide tax permit to businesses with identical ownership, the same federal identification number, the same Standard Industrial Classification number, and the same license type. The department may issue a statewide tax permit to businesses with different Standard Industrial Classification numbers if all the other requirements are met and the products or services being sold are the same even though the Standard Industrial Classification numbers are different. Any business requesting a statewide tax permit must maintain records that clearly show gross receipts, deductions, and municipal and tourism sales for each location reported under the statewide permit. Such records shall be stored and available at one location.

History

Source: 27 SDR 9, effective August 7, 2000; 28 SDR 69, effective November 21, 2001; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1)(4), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:07.03 Application for tax permit -- Streamline registration

Each applicant for a tax permit through the streamline registration system shall provide the following information:

(1) The applicant's federal identification number if the internal revenue service requires a federal identification number or the applicant's social security number;

(2) The applicant's legal name;

(3) The applicant's business name (if different than legal name);

(4) The applicant's business address;

(5) The applicant's mailing address (if different than business address);

(6) The applicant's state of incorporation or organization;

(7) Contact person and contact person's phone number;

(8) NAICS Code for primary source of business;

(9) Technology model the applicant will use for reporting and paying tax; and

(10) Information for each state that the applicant is eligible to volunteer for streamline sales tax, and whether the applicant is already registered in that state, or needs to register in that state.

Applicant will be required to furnish additional information per SDCL 10-45-24 and § 64:06:01:07.01 if they are required to register in this state.

History

Source: 31 SDR 214, effective July 6, 2005.
General Authority: SDCL 10-45-47.1(1).
Law Implemented: SDCL 10-45-24.

ARSD 64:06:01:08 Exemption certificates

Receipts from the sale of tangible personal property or any product transferred electronically are presumed to be exempt if the buyer has furnished an exemption certificate. A new exemption certificate is not needed for each sale.

Electricians, plumbers, and other similar contractors who maintain a retail store, in addition to contracting out their services, may purchase all electrical, plumbing, and related merchandise from jobbers, wholesalers, or manufacturers for resale and give an exemption certificate. All items removed from inventory and used in the performance of a contract are subject to use tax. Use tax on materials used in contract work must be paid on the cost of such materials.

Electricians, plumbers, and other similar contractors who are not retailers may not hold a tax permit, but may take credit on their excise tax return for amounts paid to suppliers as sales tax if the item purchased is later resold rather than used. Sales must then be reported and tax paid on the amount of the sale.

In order to purchase ingredient or component parts exempt from tax, processors and manufacturers must be licensed and must furnish their suppliers with exemption certificates.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(4), 10-46-35.1(4), 10-46A-19(4), 10-46B-18(4).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-61, 10-46-2, 10-46-2.2.

ARSD 64:06:01:08.01 Exemption certificates -- Forms accepted

The only acceptable forms for exemption certificates are the department's exemption certificate form, a substitute for this form that has the prior approval of the department, or the Multistate Tax Commission uniform sales and use tax certificate form, or the streamlined sales tax agreement certificate of exemption.

History

Source: 15 SDR 58, effective October 19, 1988; 20 SDR 103, effective January 10, 1994; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 2, 2003; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(4).
Law Implemented: SDCL 10-45-1(10), 10-45-2, 10-45-61.

ARSD 64:06:01:08.02 Services as components of other services

Services which are an integral, inseparable component of services involving the manufacture, fabrication, processing, or manipulation of tangible personal property or any product transferred electronically are considered to be for resale. Receipts from the sale of a service for resale by the purchaser are not subject to sales tax provided the purchaser furnishes an exemption certificate. In order for the transaction to be a sale for resale, the following conditions must be present:

(1) The manufacturer, fabricator, processor, or manipulator does not use the service in any manner other than resale; and

(2) The service is delivered or resold to the ultimate customer without any alteration or change.

Declaratory Rulings:

The commissions and buyer's fees received by an auctioneer as a result of its auction services in the sale of tangible property for resale are gross receipts subject to the retail sales and service tax imposed by SDCL 10-45-4. The services are used and consumed by the sellers and buyers and are not resold to another party. Secretary of Revenue Declaratory Ruling 91-1, May 6, 1991.

The engineering services provided by a technical services company to a company that builds and repairs building components are subject to tax pursuant to SDCL 10-45-4. They are not an integral, inseparable component of services involving the manufacture, fabrication, processing, or manipulation of tangible personal property. Secretary of Revenue Declaratory Ruling 92-1, September 11, 1992.

Examples:

(1) ABC Manufacturing builds garden tractors. It does not have the capacity to paint the finished product, and hires Rainbow Paint Company to do so. The services of Rainbow are an integral part of the manufacturing process, and may be purchased by ABC for resale provided ABC furnishes an exemption certificate to Rainbow.

(2) Ace Mechanic contracts to repair a wrecked automobile. Ace repairs the damage except for the radiator which is taken to Sam's Radiator Service. Sam fixes the radiator and is paid by Ace. Ace then bills the owner of the vehicle for the repair work, which charge includes the sum paid to Sam. The amount paid by Ace to Sam would not bear tax if Ace gave Sam an exemption certificate. The entire amount paid by the owner to Ace is subject to tax.

History

Source: 15 SDR 58, effective October 19, 1988; 16 SDR 76, effective November 1, 1989; 18 SDR 3, effective July 14, 1991; 21 SDR 219, effective July 1, 1995; 24 SDR 180, effective July 1, 1998; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(4), 10-46-35.1(4).
Law Implemented: SDCL 10-45-1(10), 10-45-2.4, 10-45-4, 10-45-4.1, 10-45-20, 10-46-2.1, 10-46-2.2.

ARSD 64:06:01:08.03 Sale of service for resale

Services which are purchased by a service provider and delivered to a current customer in conjunction with the services contracted to be provided to the customer are considered to be for resale. Receipts from the sale of a service for resale by the purchaser are not subject to sales tax if the purchaser furnishes an exemption certificate.

In order for the transaction to be a sale for resale, the following conditions must be present:

(1) The service is purchased for or on behalf of a current customer;

(2) The purchaser of the service does not use the service in any manner; and

(3) The service is delivered or resold to the customer without any alteration or change.

Example:

John Customer purchases a subscription to a movie channel from Fantastic Cable Company. Fantastic purchases the right to view the movie channel from Hollywood Movies, a cable movie channel subscription service. The services provided by Hollywood Movies are purchased for resale as Fantastic does not use the service in any way.

History

Source: 18 SDR 3, effective July 14, 1991; 20 SDR 103, effective January 10, 1994; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-1(10), 10-45-4, 10-45-4.1, 10-45-20, 10-46-2.1

ARSD 64:06:01:08.04 Services performed on property held for sale

The repair of tangible personal property held for sale or the installment of replacement parts in tangible personal property that is held for sale are considered to be services for resale. Receipts from the sale of services for resale are not subject to sales tax if the purchaser furnishes an exemption certificate.

Examples:

(1) Al's Used Cars, Inc., hires Ace Mechanic to install a rebuilt carburetor in one of its cars which is to be sold. Ace's fees are not subject to tax if Al gives Ace an exemption certificate.

(2) Al also has Ace repair a lawnmower which Al uses to mow his car lot. Ace's fees are subject to tax even though Al may eventually sell the lawnmower to a third party.

History

Source: 18 SDR 3, effective July 14, 1991; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-1(10), 10-45-4, 10-45-4.1, 10-45-20, 10-46-2.1

ARSD 64:06:01:09 Conditional sales contracts -- Assigned and repossessed merchandise

If conditional sales contracts are assigned or negotiated by the retailer to a finance company, sales tax must be paid by the retailer on the full amount of the purchase price under the contract at the time the retailer makes the required tax remittance for the reporting period in which the sale was made.

If repossession by the finance company becomes necessary, the retailer may deduct as a bad debt, as provided in SDCL 10-45-30, that portion of the tax previously paid, provided that in liquidation of the repossessed merchandise the retailer has actually suffered a loss and the gross receipts prove to be less than anticipated under the original contract price.

If the merchandise repossessed is later sold by the retailer to a consumer, the tax applies to the second sale the same as it did to the first sale.

History

Source: SL 1975, ch 16, § 1; 5 SDR 60, effective January 25, 1979; 7 SDR 80, effective February 22, 1981; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 25 SDR 167, effective July 1, 1999; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(2).
Law Implemented: SDCL 10-45-1(10), 10-45-2, 10-45-30.

ARSD 64:06:01:09.01 Sale and leaseback contracts

If a company enters into a contract to purchase equipment from another company with the intention to resell it to a third company from whom the first company will lease it back, the first transaction is presumed to be for resale if the company who purchased the equipment can show its intention. The subsequent sale and leaseback arrangement with the leasing company cannot be an afterthought or a follow-up financing mechanism. The company must demonstrate its intention, either through simultaneous or concurrent contracts or other documentation that proves their intention was not to purchase, but to resell and lease back the equipment.

Example:

Company A enters into a contract with Company B to purchase a bulldozer. At the same time, Company A enters into a contract with Company C to sell the bulldozer to Company C and lease it back. At the time of purchase from Company B, no sales tax is due provided Company A furnishes Company B with an exemption certificate. The second transaction, the resale to Company C, is not a taxable transaction because the intention of Company A was always to resell the equipment to Company C. The lease payments to Company C are subject to sales or use tax.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-1(10), 10-45-9.1, 10-46-2.3.

ARSD 64:06:01:10 Consignment sales

If retailers receive articles of tangible personal property or any product transferred electronically on consignment from others and the consigned merchandise is sold in the ordinary course of business along with other merchandise owned by the retailer, such retailers or consignees are held to be making sales at retail. Returns must be filed and the tax remitted to the state by the consignees, along with their remittance from the sale of other merchandise.

History

Source: SL 1975, ch 16, § 1; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-2.4.

ARSD 64:06:01:11 Repealed

Credit transactions.** Repealed.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:01:12 Defective merchandise

If merchandise is sold to a customer who finds a defect in the goods and secures an allowance on the purchase price, the seller may deduct from gross receipts any amount allowed for defects.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:01:13 Religious educational institutions

Gross receipts from services and sales of tangible personal property and any product transferred electronically to religious education institutions are exempt from sales tax. The exemption does not extend to purchases for the personal use of officials, members, and employees or to be used in the operation of a taxable business. Institutions operating cafes, dining rooms, or book stores or vending other merchandise must secure a sales tax license and report sales tax on their receipts from such operations.

Qualification as a religious educational institution depends upon the following factors:

(1) The institution is owned, leased, operated by, or affiliated with a religious society which meets the following requirements:

(a) A religious society is a society which exists to worship God. The members of the religious society meet regularly to promote their religious beliefs;

(b) The religious society is organized for religious purposes and is nonprofit;

(c) The religious society is exempt under 26 U.S.C.S § 501(c) or (d) of the Internal Revenue Code in effect on January 1, 1983;

(2) One of the purposes of the institution is the promotion of its religious views through education; and

(3) The educational institution has a definite physical location with a regular faculty, classes, and established course of study.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-14.

ARSD 64:06:01:14 Repealed

Exchange of reconditioned parts.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 16 SDR 76, effective November 1, 1989.

ARSD 64:06:01:15 Exemption certificates

Religious education institutions, nonprofit charitable hospitals, and relief agencies must furnish exemption certificates when making exempt purchases.

History

Source: SL 1975, ch 16, § 1; 9 SDR 28, effective September 5, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1(4), 10-46-35.1(4).
Law Implemented: SDCL 10-45-2, 10-45-10, 10-45-14, 10-45-61, 10-46-9.

ARSD 64:06:01:16 Repealed

Failure to file and report.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:01:17 Federal corporations, sales to

Federal land banks, federal deposit insurance corporations, commodity credit corporations, federal farm mortgage corporations, reconstruction finance corporations, American National Red Cross, and federal credit unions are exempt from sales or use tax on purchases.

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 used in the operation of a taxable retail business.

History

Source: SL 1975, ch 16, § 1; 8 SDR 81, effective January 10, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-10.

ARSD 64:06:01:18 Repealed

Federal manufacturer's excise taxes.** Repealed.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:19 Fire and ambulance departments

Municipal and volunteer fire departments and volunteer ambulance departments perform governmental functions. Sales to or purchases by a municipal or volunteer fire department or a volunteer ambulance department are exempt from sales or use tax if the items purchased are for use by the fire department or volunteer ambulance department and title to the items is retained by the fire department or volunteer ambulance department.

Fire departments or volunteer ambulance departments selling admissions to entertainment or selling tangible personal property or any product transferred electronically must pay sales tax on their receipts the same as any other person or organization engaged in such an activity.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 23 SDR 118, effective January 27, 1997; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-10.

ARSD 64:06:01:20 Forms

The department shall furnish copies of the applicable forms, when possible, to persons liable for the tax. A retailer is not excused from making a return by the fact that no form has been furnished to the retailer. A retailer not supplied with the proper form shall apply to the department for it in time to make the report and remittance within the time prescribed.

History

Source: SL 1975, ch 16, § 1; 9 SDR 28, effective September 5, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-33A-16(2) 10-45-47.1(2), 10-45D-13(2), 10-46E-11(2), 10-52A-7(2), 49-31-51.1(1).
Law Implemented: SDCL 10-33A-10.1, 10-45-27.3, 10-45D-10.2, 10-46A-8, 10-46A-1.8, 10-46E-8, 10-52A-4.2, 49-31-51.

ARSD 64:06:01:21 Certain organizations not exempt from sales or use tax

Fraternal, religious, benevolent, and charitable organizations are not exempt from payment of sales tax or use tax when the organization is the purchaser at retail of merchandise which it will consume or use. Retailers shall charge sales tax or use tax on all sales of merchandise sold to religious, fraternal, benevolent, or charitable institutions.

Declaratory Rulings: The Salvation Army is a non-profit relief agency not subject to sales tax. Secretary of Revenue Declaratory Ruling No. 75-1.

A contractor who installs a pipe organ in a church is subject to sales and use tax on the materials used in performance of the contract. Secretary of Revenue Declaratory Ruling No. 78-1.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:01:22 Repealed

Indian reservations.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 2 SDR 40, effective December 8, 1975.

ARSD 64:06:01:23 Intrastate sales -- Sale and delivery in South Dakota

If tangible personal property is located within the state of South Dakota at the time of sale and, pursuant to and as part of the sale, does not leave the state, the entire sale and delivery of the merchandise having taken place in South Dakota whether the purchaser is a nonresident of the state or not, the sale is taxable. It is immaterial where the parties to the contract to sell are located, where the contract was made or accepted, or where the purchase price was paid. The purchaser may, subsequent to the sale, transport property out of the state or use it in the conduct of interstate commerce without affecting the taxability of the sale.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-9.

ARSD 64:06:01:24 Interstate sales -- Originating in South Dakota

Tax does not extend to gross receipts from sales in which the seller is obligated under the terms of the agreement to make physical delivery of the goods sold, from a point in the state to a point outside the state, not to be returned to a point within the state. Written evidence of the contract of sale must be retained by the retailer to prove physical delivery was made outside South Dakota. Tax does not apply to receipts from a sale if the seller, by carrier or mail, delivers goods sold from a point in this state to a point outside the state on order of the buyer not to be returned to South Dakota. The most acceptable proof delivery was made outside the state will be:

(1) A bill of lading or weight bill made out to the seller's order and calling for delivery;

(2) An insurance receipt or registry issued by the United States postal department, or a post office department receipt; or

(3) A receipt of delivery signed by the seller's delivery agent showing the signature and address of the person outside this state who received the goods delivered. It is immaterial whether the goods are sold f.o.b. origin or f.o.b. destination.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-9.

ARSD 64:06:01:25 Interstate sales -- Originating in other states

Sales tax liability is incurred when a sale at retail is made for use or consumption in this state. Sales tax must be paid even though the property sold is transported directly to the buyer from a point outside this state if the seller is engaged in the business of selling tangible personal property in this state and if possession of the property is transferred to a buyer residing or located in this state.

The purchase or contract may either precede or follow the interstate shipment. Sales tax applies to the transaction whether the shipment is made free on board (f.o.b.), point of origin or f.o.b. destination and no matter how the goods are transported.

All retailers doing business in this state and maintaining a business office in this state or maintaining agents or solicitors or doing business through independent order takers are subject to the retail sales tax on all sales of merchandise at retail when such sales are made for use and consumption in this state. Contracts or agreements purporting to require shipment of the property outside of South Dakota do not exempt sellers if the tax would otherwise apply. Sales tax applies regardless of whether the sales are made through solicitation, direct mail, or catalogs.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-9.

ARSD 64:06:01:26 Repealed

Lease contracts of sale.** Repealed.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 7 SDR 80, effective February 22, 1981; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:01:26.01 Repealed

Lease purchase agreements.** Repealed.

History

Source: 7 SDR 80, effective February 22, 1981; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:01:27 Repealed

Monthly payment.** Repealed.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 5 SDR 60, effective January 25, 1979; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:01:28 Repealed

Multiple license holders.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:01:29 Municipal tax -- Administration and reporting

Reporting of the municipal taxes administered by the department under SDCL chapters 10-52 and 10-52A shall be incorporated in state tax return forms. Only one return form must be filed to report and remit both state and municipal taxes due.

History

Source: SL 1975, ch 16, § 1; 5 SDR 60, effective January 25, 1979; 9 SDR 28, effective September 5, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-52-4, 10-52A-7(2).
Law Implemented: SDCL 10-52-4, 10-52A-4.2.

ARSD 64:06:01:29.01 Repealed

City to notify secretary of adoption of local sales and use tax.** Repealed.

History

Source: 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:29.02 Repealed

Changes of municipality's boundaries.** Repealed.

History

Source: 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:29.03 Repealed

Statewide uniformity of municipal tax on construction materials.** Repealed.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 29 SDR 177, adopted June 12, 2003, repealed, effective January 1, 2004.

ARSD 64:06:01:30 Municipal tax -- No special permit required

Any retailer issued a permit to engage in business in South Dakota pursuant to SDCL 10-45-25 or 10-46-22 is considered to be registered for municipal tax pursuant to SDCL 10-52-2 and 10-52A-2 that the department administers. Every retailer doing business in South Dakota and holding a state tax permit must report and remit municipal tax on taxable transactions where tangible personal property, products transferred electronically, or services are received within a municipality having an ordinance imposing a tax administered by the state pursuant to SDCL 10-52-4 or 10-52A-2.

History

Source: SL 1975, ch 16, § 1; 5 SDR 60, effective January 25, 1979; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-52-4, 10-52A-7(1).
Law Implemented: SDCL 10-52-4, 10-52A-6.

ARSD 64:06:01:31 Municipal tax -- Credit for tax previously paid

The amount of municipal tax imposed on tangible personal property, any product transferred electronically, or service shall be reduced by the amount of municipal tax previously paid by the taxpayer on the property or services because of liability to another municipality.

History

Source: SL 1975, ch 16, § 1; 5 SDR 60, effective January 25, 1979; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-46-35.1(3), 10-52-4.
Law Implemented: SDCL 10-46-6.1, 10-52-4.

ARSD 64:06:01:32 Repealed

Municipal sales tax -- Sales of service.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:01:33 Permit for each place of business in state

Retailers must have a tax permit for each place of business in the state except for businesses that have received a statewide permit pursuant to SDCL 10-45-25. Whether the businesses are in the same county or same town is immaterial. This provision applies to each place of business where the business is permanent, temporary, or transient.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 20 SDR 196, effective February 22, 1994; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-25, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:33.01 Repealed

Reporting requirements for business operating on temporary basis.** Repealed.

History

Source: 20 SDR 196, effective February 22, 1994; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:34 Credit for tax previously paid

The amount of use tax imposed on tangible personal property, any product transferred electronically, or service shall be reduced by the amount of sales or use tax previously paid by the taxpayer on the property or service because of liability to another state or its political subdivision.

The amount of excise tax imposed on farm machinery, attachment units, and irrigation equipment used exclusively for agricultural purposes shall be reduced by the amount of sales, use, or gross receipts tax previously paid by the taxpayer on the machinery and equipment because of liability to another state or its political subdivision.

Credit will not be granted for taxes paid on tangible personal property, any product transferred electronically, or service in another state or its political subdivision if that state does not grant a credit for taxes paid on similar tangible personal property, any product transferred electronically, or service in this state. Credit may not be granted when property purchased in another state is shipped by a common carrier or delivered by the seller because there is no sales or use tax liability in that state.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-46-35.1(3), 10-46E-11(3).
Law Implemented: SDCL 10-46-6.1, 10-46E-8, 10-46E-13.

ARSD 64:06:01:35 Required records for sales, rentals, and leases

A seller, retailer, or person storing, using, or otherwise consuming in this state tangible personal property or any product transferred electronically purchased from a retailer and the lessor and lessee of tangible personal property or any product transferred electronically for use in this state shall keep complete records showing the following:

(1) Gross receipts from sales or rental payments from leases of tangible personal property or any product transferred electronically, including any services that are a part of the sale or lease, made within South Dakota, whether the seller or lessor regards the receipts as taxable or nontaxable;

(2) All deductions allowed by law and claimed in filing returns; and

(3) The total purchase price of all tangible personal property or any product transferred electronically purchased for sale, consumption, or lease in South Dakota.

These records must include the normal books of account ordinarily maintained by the average prudent business person engaged in the activity in question, together with all bills, receipts, invoices, cash register tapes, or other documents showing the original entries supporting the entries in the books of account as well as all schedules or working papers used in connection with the preparation of tax returns.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(4), 10-45D-13(4), 10-46-35.1(4), 10-46E-11(4), 10-52-4, 10-52A-7(4).
Law Implemented: SDCL 10-45-45, 10-45D-12, 10-46-39, 10-46E-8, 10-52-4, 10-52A-6.

ARSD 64:06:01:35.01 Repealed

Microfilm records.** Repealed.

History

Source: 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:35.02 Repealed

Records prepared by automated data processing systems.** Repealed.

History

Source: 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:35.03 Records to be preserved for three years -- Penalty for failure to maintain records

All records pertaining to transactions involving sales or use tax, or telecommunications access fees liability must be preserved for not less than three years. Records on depreciating assets must be maintained until that asset is fully depreciated.

The records required for the audit must be presented to the auditor for examination on request by the secretary or authorized representatives. For purposes of this section, presentation to the auditor means physically handing over to the auditor those complete documents which are required to be kept by law and which are the subject of the audit.

Failure to maintain and keep complete and accurate records is evidence of negligence or intent to evade the tax and may result in penalties or other administrative action.

History

Source: 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; 28 SDR 178, effective July 1, 2002; 30 SDR 58, effective November 5, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(4), 10-45D-13(4), 10-46-35.1(4), 10-46E-11(4), 10-52A-7(4), 10-59-38(2), 49-31-51.1(3).
Law Implemented: SDCL 10-45-45, 10-45D-12, 10-46-2, 10-46-39, 10-46E-8, 10-52A-6, 10-59-3, 10-59-7, 10-59-16, 49-31-51.1(3).

ARSD 64:06:01:35.04 Sample periods for audits

An auditor conducting an audit for the department may choose to do a sample audit, random or judgmental, rather than a detailed examination of all records for the audit period. The auditor shall determine the sample size based on the records available, internal controls, changes in the accounting system, and changes in business operations. If the auditor uses a judgmental block sampling method and the taxpayer does not agree to a different percentage, the auditor shall select no less than ten percent of the taxpayer's sales and use tax reporting periods to determine whether sales and use tax was properly charged. The auditor shall apply the error factor, if any, calculated from the sample to all periods of the audit.

History

Source: 15 SDR 58, effective October 19, 1988; 19 SDR 42, effective September 29, 1992; 20 SDR 103, effective January 10, 1994; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; 28 SDR 178, effective July 1, 2002; 30 SDR 58, effective November 5, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(5), 10-45D-13(5), 10-46E-11(4), 10-47B-2, 10-52-4, 10-52A-7(5), 10-59-38, 49-31-51.1(4).
Law Implemented: SDCL 10-45-45, 10-45D-12, 10-46E-8, 10-47B-2, 10-52-4, 10-52A-6, 10-59-5, 49-31-51.1(4).

ARSD 64:06:01:35.05 Use of other records to verify audits

For auditing purposes, the auditor may refer to other records to determine the tax liability of the taxpayer, as follows:

(1) When the gross sales records are inadequate, the auditor may refer to the following records:

(a) Federal income tax returns;

(b) Bank statements, including checks, deposit slips, and bank records of loans;

(d) Gross profit tests based on expenses and withdrawals; and

(e) Cash transactions;

(2) When the gross taxable sales records are inadequate, the auditor may use the following methods of verifying the taxable sales:

(a) Using purchase invoices or journals plus an acceptable industry markup;

(b) Computing the ratio of gross taxable sales to gross sales from a like business and applying this ratio to gross sales;

(d) Using other indirect methods generally accepted under accounting principles; and

(3) Records the auditor may use to verify the deductions taken by the taxpayer include the following:

(a) Invoices for sale for resale;

(b) Invoices for exempt sales;

(d) Freight bills showing out-of-state deliveries;

(e) Invoices for returns and allowances; and

(f) Worksheets for bad debts; and

(4) Records the auditor may use to verify the use tax purchases include the following;

(a) Purchase invoices;

(b) Disbursements journals or check registers; and

Cross-Reference: Accounting principles, § 20:37:11:08.

History

Source: 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(5), 10-45D-13(5), 10-46-35.1(5), 10-46E-11(4), 10-52-4, 10-52A-7(5), 49-31-51.1(4).
Law Implemented: SDCL 10-45-45, 10-45D-12, 10-46-43, 10-46E-8, 10-52-4, 10-52A-6, 49-31-51.1(4).

ARSD 64:06:01:36 Repealed

Records -- Preserved.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:01:37 Refunds to consumers

If a retailer allows a refund or credit to a customer and the refund or credit is deductible from the retailer's gross receipts, the retailer must return to, or credit the customer with the amount of tax passed on to the customer on the amount of deductible gross receipts. Refunds on merchandise, the sales of which were included in the gross taxable receipts may be entered in the tax return as a deduction on the line provided for such purpose.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1, 10-45D-13(2), 10-46E-11(2), 10-52-4, 10-52A-7(2).
Law Implemented: SDCL 10-45-29, 10-45D-12, 10-46E-8, 10-52-4, 10-52A-6.

ARSD 64:06:01:38 Relief agencies

Application for exempt status must be made to the department. Exempt status shall be granted upon a showing that the applicant meets the requirements of SDCL 10-45-10. In determining the qualifications for exemption as a relief agency the following shall be considered, but will not be exclusive, in the final determination of the exemption status request:

(1) The relief agency is organized and conducted solely for the benefit of the general public and for relief of the public burden;

(2) A person who needs the services of the relief agency is not turned away because the person is not able to pay for services;

(3) The relief agency does not provide for gain or profit of any private member of the agency except in the form of a salary;

(4) Upon dissolution the assets of the agency are used for charitable purposes;

(5) The relief agency does not present or appear to present any obstacles of any character, such as founders' fees, mandatory assignment of income or property, or minimum fees, to those who need the benefits of the agency;

(6) The average cost of services of the relief agency exceeds the amount of fees actually collected;

(7) A major source of income of the relief agency results from gifts, bequests, or donations, not current charges;

(8) Allocation of facilities or services of the relief agency is not related in any way to ability to pay for such facilities or services; and

(9) The relief agency has an exemption granted pursuant to section 501(c)(3) of the Internal Revenue Code.

Once an exempt status is granted, such a status must be renewed by the relief agency every five years with the filing of a new application, bylaws, articles of incorporation, constitution or articles of association.

Declaratory Rulings:

The Salvation Army is a nonprofit relief agency not subject to sales tax. Secretary of Revenue Declaratory Ruling No. 75-1.

A nonprofit corporation whose general purpose is to provide services to older persons in the community is not entitled to exempt status as a relief agency under SDCL 10-45-10 because its resources are not devoted exclusively to the relief of the poor, distressed, or underprivileged. Secretary of Revenue Declaratory Ruling 92-2, December 29, 1992.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 5 SDR 60, effective January 25, 1979; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-10.

ARSD 64:06:01:39 Return of tax reports and telecommunications access fees

After a tax permit is issued, tax and telecommunications access fee blanks on which the retailer is to report and remit tax, municipal tax, gross receipts tax on visitor-related businesses, and telecommunications access fees to the department shall be sent to the retailer each reporting period. Failure to receive a sales and use tax return or telecommunication access fee return does not excuse failure to report or pay tax on time. All remittances must be made payable to the state treasurer. Any retailer that reports and remits taxes by electronic transmission pursuant to SDCL 10-59-32 will not be sent a return.

A tax or telecommunications access fee return is made to the department when a completed state and municipal sales and use tax return or telecommunications access fee form is received at the office of the department in Pierre or at a field office of the department. A remittance is made to the department when an order on a bank or other remitter to pay a stated amount to the named payee, which is not thereafter dishonored, is received at the office of the department in Pierre or at a field office of the department. If a return or remittance is mailed with sufficient postage, the date of receipt is the date of the United States postal service postmark. If there is no postmark, the postmark date is illegible, the postmark is not that of the United States postal service, or the return or remittance is not mailed by either certified or registered mail, the return or remittance is made on the date the return is received at the office of the department in Pierre or at a field office of the department.

History

Source: SL 1975, ch 16, § 1; 5 SDR 60, effective January 25, 1979; 7 SDR 80, effective February 22, 1981; 9 SDR 28, effective September 5, 1982; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 27 SDR 9, effective August 7, 2000; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(2), 10-45D-13(2), 10-46E-11(2), 10-52-4, 10-52A-7(2), 49-31-51.1(1).
Law Implemented: SDCL 10-45-27.3, 10-45D-10.2, 10-45D-12, 10-46E-8, 10-52-4, 10-52A-4.2, 10-52A-6, 49-31-51.1(1).

ARSD 64:06:01:39.01 Rate schedules

Retailers may compute the tax imposed by SDCL chapters 10-45, 10-45D, 10-52, 10-52A, and 10-46E according to the following schedules. Retailers may request the rate schedules from the department.

4% TAX TABLE

5% TAX TABLE

6% TAX TABLE

Sale

Tax

Sale

Tax

Sale

Tax

.01

.12

.00

.01

.09

.00

.01

.08

.00

.13

.37

.01

.10

.29

.01

.09

.24

.01

.38

.62

.02

.30

.49

.02

.25

.41

.02

.63

.87

.03

.50

.69

.03

.42

.58

.03

.88

1.12

.04

.70

.89

.04

.59

.74

.04

1.13

1.37

.05

.90

1.09

.05

.75

.91

.05

1.38

1.62

.06

1.10

1.29

.06

.92

1.08

.06

1.63

1.87

.07

1.30

1.49

.07

1.09

1.24

.07

1.88

2.12

.08

1.50

1.69

.08

1.25

1.41

.08

2.13

2.37

.09

1.70

1.89

.09

1.42

1.58

.09

2.38

2.62

.10

1.90

2.09

.10

1.59

1.74

.10

2.63

2.87

.11

2.10

2.29

.11

1.75

1.91

.11

2.88

3.12

.12

2.30

2.49

.12

1.92

2.08

.12

3.13

3.37

.13

2.50

2.69

.13

2.09

2.24

.13

3.38

3.62

.14

2.70

2.89

.14

2.25

2.41

.14

3.63

3.87

.15

2.90

3.09

.15

2.42

2.58

.15

3.88

4.12

.16

3.10

3.29

.16

2.59

2.74

.16

4.13

4.37

.17

3.30

3.49

.17

2.75

2.91

.17

4.38

4.62

.18

3.50

3.69

.18

2.92

3.08

.18

4.63

4.87

.19

3.70

3.89

.19

3.09

3.24

.19

4.88

5.12

.20

3.90

4.09

.20

3.25

3.41

.20

5.13

5.37

.21

4.10

4.29

.21

3.42

3.58

.21

5.38

5.62

.22

4.30

4.49

.22

3.59

3.74

.22

5.63

5.87

.23

4.50

4.69

.23

3.75

3.91

.23

5.88

6.12

.24

4.70

4.89

.24

3.92

4.08

.24

6.13

6.37

.25

4.90

5.09

.25

4.09

4.24

.25

6.38

6.62

.26

5.10

5.29

.26

4.25

4.41

.26

6.63

6.87

.27

5.30

5.49

.27

4.42

4.58

.27

6.88

7.12

.28

5.50

5.69

.28

4.59

4.74

.28

7.13

7.37

.29

5.70

5.89

.29

4.75

4.91

.29

7.38

7.62

.30

5.90

6.09

.30

4.92

5.08

.30

7.63

7.87

.31

6.10

6.29

.31

5.09

5.24

.31

7.88

8.12

.32

6.30

6.49

.32

5.25

5.41

.32

8.13

8.37

.33

6.50

6.69

.33

5.42

5.58

.33

8.38

8.62

.34

6.70

6.89

.34

5.59

5.74

.34

8.63

8.87

.35

6.90

7.09

.35

5.75

5.91

.35

8.88

9.12

.36

7.10

7.29

.36

5.92

6.08

.36

9.13

9.37

.37

7.30

7.49

.37

6.09

6.24

.37

9.38

9.62

.38

7.50

7.69

.38

6.25

6.41

.38

9.63

9.87

.39

7.70

7.89

.39

6.42

6.58

.39

9.88

10.12

.40

7.90

8.09

.40

6.59

6.74

.40

8.10

8.29

.41

6.75

6.91

.41

8.30

8.49

.42

6.92

7.08

.42

8.50

8.69

.43

7.09

7.24

.43

8.70

8.89

.44

7.25

7.41

.44

8.90

9.09

.45

7.42

7.58

.45

9.10

9.29

.46

7.59

7.74

.46

9.30

9.49

.47

7.75

7.91

.47

9.50

9.69

.48

7.92

8.08

.48

9.70

9.89

.49

8.09

8.24

.49

9.90

10.09

.50

8.25

8.41

.50

8.42

8.58

.51

8.59

8.74

.52

8.75

8.91

.53

8.92

9.08

.54

9.09

9.24

.55

9.25

9.41

.56

9.42

9.58

.57

9.59

9.74

.58

9.75

9.91

.59

9.92

10.08

.60

7% TAX TABLE

8% TAX TABLE

Sale

Tax

Sale

Tax

.01

.07

.00

.01

.06

.00

.08

.21

.01

.07

.18

.01

.22

.35

.02

.19

.31

.02

.36

.49

.03

.32

.43

.03

.50

.64

.04

.44

.56

.04

.65

.78

.05

.57

.68

.05

.79

.92

.06

.69

.81

.06

.93

1.07

.07

.82

.93

.07

1.08

1.21

.08

.94

1.06

.08

1.22

1.35

.09

1.07

1.18

.09

1.36

1.49

.10

1.19

1.31

.10

1.50

1.64

.11

1.32

1.43

.11

1.65

1.78

.12

1.44

1.56

.12

1.79

1.92

.13

1.57

1.68

.13

1.93

2.07

.14

1.69

1.81

.14

2.08

2.21

.15

1.82

1.93

.15

2.22

2.35

.16

1.94

2.06

.16

2.36

2.49

.17

2.07

2.18

.17

2.50

2.64

.18

2.19

2.31

.18

2.65

2.78

.19

2.32

2.43

.19

2.79

2.92

.20

2.44

2.56

.20

2.93

3.07

.21

2.57

2.68

.21

3.08

3.21

.22

2.69

2.81

.22

3.22

3.35

.23

2.82

2.93

.23

3.36

3.49

.24

2.94

3.06

.24

3.50

3.64

.25

3.07

3.18

.25

3.65

3.78

.26

3.19

3.31

.26

3.79

3.92

.27

3.32

3.43

.27

3.93

4.07

.28

3.44

3.56

.28

4.08

4.21

.29

3.57

3.68

.29

4.22

4.35

.30

3.69

3.81

.30

4.36

4.49

.31

3.82

3.93

.31

4.50

4.64

.32

3.94

4.06

.32

4.65

4.78

.33

4.07

4.18

.33

4.79

4.92

.34

4.19

4.31

.34

4.93

5.07

.35

4.32

4.43

.35

5.08

5.21

.36

4.44

4.56

.36

5.22

5.35

.37

4.57

4.68

.37

5.36

5.49

.38

4.69

4.81

.38

5.50

5.64

.39

4.82

4.93

.39

5.65

5.78

.40

4.94

5.06

.40

5.79

5.92

.41

5.07

5.18

.41

5.93

6.07

.42

5.19

5.31

.42

6.08

6.21

.43

5.32

5.43

.43

6.22

6.35

.44

5.44

5.56

.44

6.36

6.49

.45

5.57

5.68

.45

6.50

6.64

.46

5.69

5.81

.46

6.65

6.78

.47

5.82

5.93

.47

6.79

6.92

.48

5.94

6.06

.48

6.93

7.07

.49

6.07

6.18

.49

7.08

7.21

.50

6.19

6.31

.50

7.22

7.35

.51

6.32

6.43

.51

7.36

7.49

.52

6.44

6.56

.52

7.50

7.64

.53

6.57

6.68

.53

7.65

7.78

.54

6.69

6.81

.54

7.79

7.92

.55

6.82

6.93

.55

7.93

8.07

.56

6.94

7.06

.56

8.08

8.21

.57

7.07

7.18

.57

8.22

8.35

.58

7.19

7.31

.58

8.36

8.49

.59

7.32

7.43

.59

8.50

8.64

.60

7.44

7.56

.60

8.65

8.78

.61

7.57

7.68

.61

8.79

8.92

.62

7.69

7.81

.62

8.93

9.07

.63

7.82

7.93

.63

9.08

9.21

.64

7.94

8.06

.64

9.22

9.35

.65

8.07

8.18

.65

9.36

9.49

.66

8.19

8.31

.66

9.50

9.64

.67

8.32

8.43

.67

9.65

9.78

.68

8.44

8.56

.68

9.79

9.92

.69

8.57

8.68

.69

9.93

10.07

.70

8.69

8.81

.70

8.82

8.93

.71

8.94

9.06

.72

9.07

9.18

.73

9.19

9.31

.74

9.32

9.43

.75

9.44

9.56

.76

9.57

9.68

.77

9.69

9.81

.78

9.82

9.93

.79

9.94

10.06

.80

History

Source: 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 2, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-23, 10-45D-13(2), 10-46E-11(3), 10-52-4, 10-52A-7(2).
Law Implemented: SDCL 10-45-2, 10-45-22, 10-45-23, 10-45D-12, 10-46E-8, 10-52-2, 10-52A-6, 10-45-1.4.

ARSD 64:06:01:39.02 Monthly filing

Taxpayers required to file monthly, as set forth in SDCL 10-46E-8, 10-45-27.3, and 10-52A-4.2, shall remain on the monthly filing system for a minimum period of two years.

Taxpayers with bimonthly taxes of more than $166.66 and taxpayers with monthly taxes of more than $83.33 must file monthly.

History

Source: 17 SDR 4, effective July 18, 1990; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(2), 10-45D-13(2), 10-46E-11(2), 10-52A-7(2).
Law Implemented: SDCL 10-45D-12, 10-45-27.3, 10-46E-8, 10-52A-4.2.

ARSD 64:06:01:39.03 Return and remittance -- Streamline volunteer registrations

Any seller that is registered under the Streamline agreement, which does not have a legal requirement to register in the member state, and is not a Model 1, 2, or 3 seller as defined below, shall submit its sales and use tax returns as follows:

(1) Upon registration, a member state shall provide to the seller the returns required by that state; and

(2) The seller must file a return each month unless the state allows less frequent filing.

A Model 1 seller is a seller that has selected a certified service provider, as defined in SDCL subdivision 10-45C-1(c), as its agent to perform all of the seller's sales and use tax functions, other than the seller's obligation to remit tax on its own purchases.

A Model 2 seller is a seller that has selected a certified automated system, as defined in SDCL subdivision 10-45C-1(c), to perform part of its sales and use tax functions, but retains responsibility for remitting tax.

A Model 3 seller is a seller that has sales in at least five member states, has total annual sales revenues of at least five hundred million dollars, has a proprietary system that calculates the amount of tax due in each jurisdiction, and has entered into a performance agreement with the member states that establishes a tax performance standard for the seller. As used in this definition, a seller includes an affiliated group of sellers using the same proprietary system.

History

Source: 31 SDR 214, effective July 6, 2005; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007; 38 SDR 214, effective June 21, 2012.
General Authority: SDCL 10-45-47.1(2).
Law Implemented: SDCL 10-45-27.3.

ARSD 64:06:01:40 Preparation of return

The tax return is a combination sales and use tax report. Sales are reported under gross receipts, and withdrawals from stock or purchases for own use or contract use are reported at cost as a use tax item. Deductible receipts are listed on the tax return; and if other deductions are claimed, the deductions may be listed provided an explanation is attached.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 9 SDR 28, effective September 5, 1982; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(2), 10-45D-13(2), 10-46-35.1, 10-46E-11(2), 10-52A-7(2).
Law Implemented: SDCL 10-45-27.3, 10-45D-10.2, 10-46-39, 10-46E-8, 10-52A-4.2.

ARSD 64:06:01:41 Returned merchandise

If a retailer sells tangible personal property or any product transferred electronically and the goods are returned by the customer, the transaction is handled as follows: (1) If the retailer has included in gross sales the total selling price of the property and has remitted sales tax to the department, the retailer may claim a credit as returned goods for the amount of the sale on a subsequent sales and use tax return if sales tax was returned to the purchaser at the time the goods were returned; and (2) If a retailer makes a time sale and has included in the gross receipts only the amount of each payment actually received from the time sale, the retailer may claim a credit as returned goods on a subsequent sales and use tax return the amount of the sale reported on prior sales and use tax returns if the retailer has returned to the customer the tax which the retailer collected on payments previously received from the customer.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(2), 10-45D-13(3), 10-46E-11(3), 10-52A-7(3).
Law Implemented: SDCL 10-45-29, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:42 Representing out of state dealers -- Extra permits

Agents, sales persons, solicitors, canvassers, or representatives representing out-of-state dealers registered under either the retail sales tax or use tax laws must, if traveling from place to place, carry a license card as proof they are representing such out-of-state dealer. Extra cards will be furnished for representatives upon request to the department.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 30 SDR 58, effective November 5, 2003.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-24.

ARSD 64:06:01:43 Sales by loan or finance companies

Companies who repossess or acquire tangible personal property or any product transferred electronically in connection with their loan or finance business and who sell such property at retail are required to pay sales tax on the receipts.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4.

ARSD 64:06:01:44 Sale of business permit not transferable

When the holder of a tax permit sells the business to another person, all tax for which the holder is liable becomes due immediately. The holder of the tax permit shall immediately notify the department and surrender the permit for cancellation and shall, within 15 days, make a final tax return and remit all tax due. The purchaser of the business shall apply for a new permit in the purchaser's own name.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 30 SDR 58, effective November 5, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(2), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:45 Repealed

Sales not considered in interstate commerce.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:01:46 Repealed

Sales tax reports required to be filed on other than a quarterly basis.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:01:47 Transferred

Transferred to § 64:06:01:01.01.**

ARSD 64:06:01:48 Transferred

Transferred to § 64:06:01:01.02.**

ARSD 64:06:01:49 Student sororities and fraternities

Student sororities and fraternities are considered users or consumers of merchandise they purchase and not retailers. These organizations do not need a retail sales tax license but must pay tax when making purchases from retail and wholesale companies.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:01:50 Tax on gross receipts

Sales tax must be computed and paid to the state on taxable receipts even though such receipts include single sales on which no tax may be charged to the customer. A seller may elect to compute tax due on a transaction on an item or invoice basis. The rounding rule as defined in § 10-45-1.4 may be applied to the aggregated state and local tax or applied separately to each tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 30 SDR 211, effective July 1, 2004.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-1.4, 10-45-2.

ARSD 64:06:01:51 Repealed

Trade-ins.** Repealed.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 16 SDR 76, effective November 1, 1989.

ARSD 64:06:01:52 Transferred

Transferred to § 64:06:01:01.03.**

ARSD 64:06:01:53 Reserved

ARSD 64:06:01:54 Temporary tax permits

Temporary tax permits may be issued by the department to businesses of a transitory or seasonal nature or to transient solicitors for not more than 45 days.

History

Source: 2 SDR 40, effective December 8, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:55 Temporary tax permit -- Application

Application for a temporary tax permit must be made to the department. An applicant is required to supply financial records and other relevant information required by the secretary to support that application. Any applicant may also be required to post a bond before a permit will be issued under conditions similar to § 64:06:01:02.

History

Source: 2 SDR 40, effective December 8, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 30 SDR 58, effective November 5, 2003; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1), 10-45D-13(1), 10-46E-11(1), 10-52A-7(1).
Law Implemented: SDCL 10-45-24, 10-45D-12, 10-46E-8, 10-52A-6.

ARSD 64:06:01:56 Bond -- Cancellation

From and after the effective date of this rule, the department may not accept bonds which allow termination of liability prior to a time 90 days subsequent to notification of the department of the cancellation.

History

Source: 2 SDR 40, effective December 8, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-24, 10-45-26.

ARSD 64:06:01:57 Transferred

Transferred to § 64:06:01:01.04.**

ARSD 64:06:01:58 Reimbursement for expenditures

Reimbursement for expenditures actually made are not gross receipts when the reimbursement occurs within a relationship where the ownership of the property or service purchased by the person receiving the reimbursement passed directly and immediately upon the purchase to the person who made the reimbursement and the person who made the reimbursement was legally liable for payment for the property or services to the person who sold the property or services.

The reimbursement must be separately stated in the taxpayer's books, records, and billings for auditing purposes.

Examples:

(1) An architect is hired to do a study on the feasibility of renovating a building in another city. In order to make the study the architect purchases a ticket in the architect's own name and flies to the city in which the building is located. In the bill the customer is charged for the cost of the flight. The amount received from the customer is includable in the architect's gross receipts because the customer is not legally liable to pay the airline for the flight.

(2) A court reporter is hired to take a deposition in another city. In order to take the deposition, the court reporter purchases an airline ticket and flies to that city. In the bill, the client is charged for the cost of the airline ticket. The amount received from the client for the flight is includable in the court reporter's gross receipts because the client was not legally liable to the airline for the cost of the ticket.

(3) A seller of real property obtains the abstract for the parcel of land from the abstracter in preparation of a title search. A new deed is subsequently prepared and returned with the abstract to the abstracter. The abstracter updates the abstract and then files the deed in the register of deeds' office. The abstracter pays the filing fees. In the abstracter's bill to the client, the abstracter separately lists the register of deeds' filing fees. Receipt of payment for the filing fees are not includable in the abstracter's gross receipts because the client is legally obligated to pay the fee to the register of deeds' office.

(4) A client hires a real estate broker to sell the client's house. The broker obtains the abstract on the property. In reviewing the abstract, the broker finds the real estate taxes for the previous year have not been paid. The broker then pays the taxes to clear the title. After a buyer is found, the broker prepares a deed and files it in the register of deeds' office. In the bill to the client, the broker separately lists the amount due for payment of the taxes and for the filing fees paid to the register of deeds' office. Payment for the taxes and the filing fees are not includable in the broker's gross receipts because the client is legally obligated to pay the taxes and the filing fees.

History

Source: 9 SDR 28, effective July 1, 1983; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-1(10), 10-45-1.14.

ARSD 64:06:01:59 Newspaper sales

Newspapers shall collect and remit tax on the gross receipts from the sale of newspapers to independent contractor carriers.

History

Source: 22 SDR 6, effective July 23, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:01:60 Gross receipts tax on visitor-related businesses -- No special permit required

Any retailer issued a permit to engage in business in South Dakota is considered to be registered for the gross receipts tax on visitor-related businesses pursuant to SDCL chapter 10-45D. Each retailer doing business in South Dakota and holding a state tax permit must report and remit the gross receipts tax on visitor-related businesses on taxable transactions where tangible personal property, any product transferred electronically, or services are received in the state.

History

Source: 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45D-13(1), 10-52A-7(1).
Law Implemented: SDCL 10-45D-12, 10-52A-6.

ARSD 64:06:01:61 Application of sourcing rules

The sourcing rules in §§ 64:06:01:62 to 64:06:01:68, inclusive, apply regardless of the characterization of a product as tangible personal property, a product transferred electronically, or a service. The sourcing rules in §§ 64:06:01:62 to 64:06:01:68, inclusive, are used to determine a seller's obligation to collect and remit a sales or use tax with respect to the seller's retail sale of a product. These provisions do not apply to the obligation of a purchaser or lessee to pay tax on the use of a product. The sourcing rules in §§ 64:06:01:62 to 64:06:01:68, inclusive, do not apply to sales or use taxes on:

(1) The retail sale or transfer of watercraft, modular homes, manufactured homes, and mobile homes;

(2) The retail sale, excluding lease or rental, of motor vehicles, trailers, semitrailers, or aircraft that do not qualify as transportation equipment in § 64:06:01:68; and

(3) Telecommunication services. Telecommunication services are sourced according to §§ 64:06:02:90 to 64:06:02:92, inclusive.

History

Source: 29 SDR 177, effective July 2, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:62 Definition of terms used in sourcing rules

Terms used in §§ 64:06:01:61 to 64:06:01:65, inclusive, mean:

(1) "Receive,"

(a) the taking possession of tangible personal property;

(b) making first use of services; or

The term, receive, does not include possession by a shipping company on behalf of the purchaser;

(2) "Product," any tangible personal property, any product transferred electronically, including software delivered electronically, or services, whether sold, leased, or rented.

History

Source: 29 SDR 177, effective July 2, 2003; 30 SDR 211, effective July 1, 2004; 35 SDR 48, effective September 8, 2008; 41 SDR 173, effective May 14, 2015.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:63 General sourcing rules

The retail sale, excluding lease or rental, of a product shall be sourced as follows:

(1) If the product is received by the purchaser at a business location of the seller, the sale is sourced to that business location;

(2) If subdivision (1) does not apply, the sale is sourced to the location where received by the purchaser, or the purchaser's donee, if known by the seller;

(3) If subdivision (1) or (2) does not apply, the sale is sourced to the address for the purchaser in the business records of the seller that are maintained in the ordinary course of the seller's business, provided that the use of this address does not constitute bad faith;

(4) If subdivision (1), (2), or (3) does not apply, the sale is sourced to the location indicated by an address for the purchaser obtained during the consummation of the sale, including the address of a purchaser's payment instrument, if no other address is available, provided that use of this address does not constitute bad faith; and

(5) If subdivision (1), (2), (3), or (4) does not apply, or the seller is without sufficient information to apply any of the subdivisions, then the sale is sourced to the address (disregarding any location that merely provided the electronic transfer of the product sold) from which:

(a) Tangible personal property was shipped;

(b) The product transferred electronically was first available for transmission by the seller; or

History

Source: 29 SDR 177, effective July 2, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:63.01 Sourcing rules for attorney services

Notwithstanding § 64:06:01:62 and 64:06:01:63, the sale of attorney services is sourced to the attorney's office.

History

Source: 41 SDR 173, effective May 14, 2015.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:64 Sourcing rules for lease or rental of tangible personal property not included in § 64:06:01:65 or 64:06:01:66

For a lease or rental that requires recurring periodic payments, the first periodic payment is sourced as provided in § 64:06:01:63. Subsequent periodic payments are sourced to the primary property location for each period covered by the payment. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, provided that the use of this address does not constitute bad faith. The property location may not be altered by intermittent use at different locations, such as use of business property that accompanies employees on business trips or service calls.

For a lease or rental that does not require recurring periodic payments, the payment is sourced as provided in § 64:06:01:63.

This rule does not apply to the imposition or computation of sales or use tax on leases or rentals based on a lump sum or accelerated basis or on the acquisition of property for lease.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:65 Sourcing rules for motor vehicles, trailers, semi-trailers, or aircraft that do not qualify as transportation equipment

Sourcing rules for motor vehicles, trailers, semitrailers, or aircraft that do not qualify as transportation equipment.** Any lease or rental of motor vehicles, trailers, semitrailers, or aircraft that does not qualify as transportation equipment as defined in § 64:06:01:66 shall be sourced as follows:

(1) If the lease or rental requires recurring periodic payments, each periodic payment is sourced to the primary property location. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, provided that the use of this address does not constitute bad faith. This location may not be altered by intermittent use at different locations.

(2) If the lease or rental does not require recurring periodic payments, the payment is sourced as stated in § 64:06:01:63.

This rule does not apply to the imposition or computation of sales or use tax on leases or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:66 Sourcing rules for transportation equipment -- Definition of transportation equipment

The retail sale, including lease or rental of transportation equipment, shall be sourced as stated in § 64:06:01:63, notwithstanding the exclusion of leases and rentals in § 64:06:01:63. Transportation equipment is:

(1) Any locomotive and railcar that is used for the carriage of persons or property in interstate commerce;

(2) Any truck and truck-tractor with a Gross Vehicle Weight Rating of 10,001 pounds or greater, and any trailer, semitrailer, or passenger bus that is:

(a) Registered through the International Registration Plan; and

(b) Operated under authority of a carrier authorized and certificated by the U.S. Department of Transportation or other federal authority to engage in the carriage of persons or property in interstate commerce;

(3) Any aircraft that is operated by an air carrier authorized and certificated by the U.S. Department of Transportation or other federal or foreign authority to engage in the carriage of persons or property in interstate or foreign commerce; and

(4) Any container designed for use on and component parts attached or secured on any transportation equipment defined in this section.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:67 Repealed

Sourcing rules for services and digital products concurrently used in multiple states.** Repealed.

History

Source: 29 SDR 177, effective July 2, 2003; 32 SDR 225, effective July 3, 2006; repealed, 33 SDR 226, effective June 27, 2007.

ARSD 64:06:01:68 Sourcing rules for direct mailing

Notwithstanding § 64:06:01:63, a purchaser of direct mail that is not a holder of a direct pay permit may provide to the seller in conjunction with the purchase an exemption certificate claiming direct mail.

Upon receipt of an exemption certificate claiming direct mail, the seller is relieved of all obligations to collect, pay, or remit the applicable tax and the purchaser is obligated to pay or remit the applicable tax on a direct pay basis. An exemption certificate claiming direct mail shall remain in effect for all future sales of direct mail by the seller to the purchaser until it is revoked in writing. A purchaser of direct mail that provides the seller with documentation of direct pay permit is not required to provide an exemption certificate claiming direct mail.

If the purchaser of direct mail does not provide the seller with documentation of a direct pay permit or an exemption certificate claiming direct mail, the transaction shall be sourced as either:

(1) Advertising and promotional direct mail. The purchaser may provide information to show each jurisdiction to which the advertising and promotional direct mail shall be delivered to the recipients. Upon receipt of the delivery information, the seller shall collect the tax according to the delivery information provided by the purchaser. In the absence of the intent to evade tax, the seller is relieved of any further obligation to collect tax on any transaction where the seller has collected tax pursuant to the delivery information provided by the purchaser. If the purchaser of advertising and promotional direct mail does not provide the seller with delivery information, the seller shall collect the tax according to subdivision 64:06:01:63(5); or

(2) Other direct mail. The seller shall collect the tax according to subdivision 64:06:01:63(3) which is sourced to the address for the purchaser in the business records of the seller.

Nothing in this rule limits a purchaser's obligation for sales or use tax to any state to which the direct mail is delivered. The purchaser shall source the sale to the jurisdictions to which the direct mail is delivered to the recipients and must report any sales or use tax due.

History

Source: 29 SDR 177, effective July 2, 2003; 31 SDR 214, effective July 6, 2005; 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-94.1, 10-45-108.

ARSD 64:06:01:68.01 Definition of terms used in direct mail sourcing rule

Terms used in § 64:06:01:68 mean:

(1) "Advertising and promotional direct mail," any direct mail as defined in SDCL 10-45-94.1 if the primary purpose of the direct mail is to attract public attention to a product, person, business, or organization, or to attempt to sell, popularize, or secure financial support for a product, person, business, or organization. As used in this section, the term, product, means any tangible personal property, product transferred electronically, or service;

(2) "Other direct mail," any direct mail as defined in SDCL 10-45-94.1 that is not advertising and promotional direct mail regardless of whether advertising and promotional direct mail is included in the same mailing. Other direct mail includes a transactional direct mail that contains personal information specific to the addressee, any legally required mailings, and other non-promotional direct mail delivered to existing or former shareholders, customers, employees, or agents.

Other direct mail does not include the development of billing information or the provision of any data processing service that is more than incidental.

History

Source: 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-94.1, 10-45-108.

ARSD 64:06:01:69 Repealed

Direct mail.** Repealed.

History

Source: 29 SDR 177, effective July 2, 2003; repealed, SL 2010, ch 59, § 5, effective July 1, 2010.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:70 Delivery charges

If a shipment includes exempt property and taxable property, the seller must allocate the delivery charge by using:

(1) A percentage based on the total sales price of the taxable property compared to the total sales price of all property in the shipment; or

(2) A percentage based on the total weight of the taxable property compared to the total weight of all property in the shipment.

The seller must tax the percentage of the delivery charge allocated to the taxable property but does not have to tax the percentage allocated to the exempt property.

History

Source: 30 SDR 211, effective July 1, 2004; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-1(4).

ARSD 64:06:01:71 Sourcing rules for computer software maintenance contracts

The sales of computer software maintenance contracts shall be sourced to each level of a taxing jurisdiction as follows:

(1) The retail sale of a computer software maintenance contract sold by the seller with the sale of the software shall be sourced to the same address as the retail sale of the software;

(2) The retail sale of a computer software maintenance contract sold after the retail sale of the software, the renewal of a computer software maintenance contract, or the retail sale of a computer software maintenance contract by a seller other than the seller of the software shall be treated separately from the retail sale of the software and shall be sourced in accordance with § 64:06:01:63. If subdivisions 64:06:01:63(1) and (2) do not apply to the retail sale of a renewal of a computer software maintenance contract, the seller may source a retail sale of a renewal of a computer software maintenance contract to the address where the purchase of the software was sourced.

History

Source: 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:72 Sourcing software term license and subscriptions

A payment made in connection with a software term license or software subscription shall be sourced in accordance with § 64:06:01:63. However, if the seller sourced the initial payment under subdivision 64:06:01:63(2), the following rules apply to each subsequent payment:

(1) If the seller receives information from the purchaser indicating that the location of the software has changed, a subsequent payment made in connection with a software term license or renewal of a software subscription shall be sourced to the new location; or

(2) If the seller has not received information from the purchaser indicating a change in the location of the software, the seller may source a subsequent license payment made in connection with a software term license or the renewal of a software subscription to the same location where the initial payment was sourced.

History

Source: 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:73 Definition of terms

Terms used in §§ 64:06:01:71 and 64:06:01:72, inclusive, mean:

(1) "Computer software maintenance contract," a contract that obligates a vendor of computer software to provide a customer with future updates or upgrades to either computer software or support services with respect to computer software, or both;

(2) "Software subscription," a transaction requiring additional payments for updates to prewritten computer software;

(3) "Software term license," a transaction where the purchaser's right to continue to use prewritten software is dependent on periodic payment.

History

Source: 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:01:74 Sourcing rules of personal care services

The sale of any personal care service shall be sourced at the location where the service is performed, which is the same location where the service is received by the purchaser. The service is received by the purchaser either at the seller's location according to subdivision 64:06:01:63(1) or the purchaser's location according to subdivision 64:06:01:63(2). For the purpose of this rule the term, personal care services, means any service performed on the physical human body. However, any funeral service or personal care service that is available at multiple locations pursuant to a single payment is exempt from the provisions of this section.

Example:

AZ, a customer in South Dakota, contacts a massage therapist located outside South Dakota for a therapeutic massage. AZ requests that the therapist perform the massage at her residence in South Dakota. The therapist travels to AZ's residence to perform the massage. AZ receives, or makes first use of, the service in South Dakota where the massage is performed; therefore the sale is sourced to South Dakota.

History

Source: 38 SDR 214, effective June 21, 2012
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

Chapter 64:06:02 Services -- Interpretive rules

ARSD 64:06:02:01 Repealed

Abstractors.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:02 Repealed

Accountants and bookkeepers.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:03 Advertising

Advertising services are the business of preparing advertisements for publication in newspapers, magazines, placemats, billboards, or handbills or for broadcast and welcoming services which contact new residents and others to explain business services within the area and leave promotional literature.

Charges for advertising in newspapers or magazines are not taxable. Likewise, charges made by advertising agencies for preparing and placing advertising in advertising media are charges for services and therefore not taxable.

Services purchased by the agency to assist it in completing a project for a current customer are not subject to tax if the service is an integral and inseparable component of the ultimate service to its customer and the agency provides the service provider with an exemption certificate. Examples of services that may be considered for resale if they are an integral and inseparable part of the final product are art work, proofreading, copywriting, handlettering, photo finishing, modeling, photography, production studio rental, photo studio rental, video studio rental, audio studio rental, prop rental, music rights, sound effects, dubbing, typesetting, color separation, keylining, illustration, retouching, air brushing, silk screening, and editing.

Sales tax applies to gross receipts from sales of tangible personal property and any product transferred electronically to persons providing advertising services for use and consumption in preparing advertisements. Tax applies to the following: paper, ink, paint, tools, office supplies, type, and charges by printers for production of pamphlets, booklets, brochures, and other material printed by them.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 18 SDR 3, effective July 14, 1991; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-12.1, 10-45-20.

ARSD 64:06:02:03.01 Advertising payments

Gross receipts received by a retailer as a cost share or a reimbursement for purchases of exempt advertising services made by the retailer are not subject to sales tax if:

(1) The gross receipts are paid by a manufacturer or supplier to the retailer for including the manufacturer's or supplier's identity in the retailer's advertisement;

(2) The retailer denotes the gross receipts as a cost share or reimbursement for exempt advertising services; and

(3) The retailer has documentation verifying that the gross receipts were received as a cost share or reimbursement for a specific exempt advertising service purchased by the retailer.

History

Source: 24 SDR 97, effective January 25, 1998.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-12.1, 10-45-20.

ARSD 64:06:02:03.02 Advertising cooperatives

Gross receipts received by a franchiser as a cost share or a reimbursement for purchases of exempt advertising services made by the franchiser are not subject to sales tax if:

(1) The gross receipts are paid by a franchisee to its franchiser for exempt advertising services purchased by the franchiser for the franchisee's business or the franchise;

(2) The franchiser denotes the gross receipts as a cost share or reimbursement for exempt advertising services; and

(3) The franchiser has documentation verifying that the gross receipts were received as a cost share or reimbursement for a specific exempt advertising service purchased by the franchiser.

History

Source: 24 SDR 97, effective January 25, 1998.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-12.1, 10-45-20.

ARSD 64:06:02:04 Repealed

Architects.** Repealed.

History

Source: SL 1975, ch 16, § 1; 5 SDR 60, effective January 25, 1979; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:05 Repealed

Attorneys, physicists, meteorologists, geologists, chemists, engineers, and surveyors.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:06 Repealed

Auctioneers and agents -- Pawnbrokers -- Disclosed and undisclosed principals.** Repealed.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed by SL 1995, ch 68, §12A, effective July 1, 1995.

ARSD 64:06:02:06.01 Repealed

Community sales, auction houses, and public auctions.** Repealed.

History

Source: 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed by SL 1995, ch 68, § 12A, effective July 1, 1995.

ARSD 64:06:02:06.02 Consignment sales are retail sales

All consignment sales of tangible personal property and any product transferred electronically are sales at retail, and the consignee is a retailer who must collect and remit the tax on all such sales.

History

Source: 22 SDR 6, effective July 23, 1995; 28 SDR 178, effective July 1, 2002; 31 SDR 214, effective July 6, 2005; 35 SDR 48, effective September 8, 2008; 35 SDR 165, effective December 23, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-1(10), 10-45-2, 10-45-2.4.

ARSD 64:06:02:06.03 Auctioneer sales not casual or occasional sales

A sale directly by or a sale which is supervised or aided by an auctioneer or consignee or by an agent or employee of an auctioneer or consignee is not a casual or occasional sale.

Cross-Reference: Casual or occasional sales, § 64:06:01:06.

History

Source: 22 SDR 6, effective July 23, 1995; 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007; 35 SDR 48, effective September 8, 2008; 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-1(10), 10-45-2, 10-45-2.4.

ARSD 64:06:02:07 Barber and beauty shops

Taxable gross receipts of barber and beauty shops include items of merchandise sold to customers and the service performed for a customer.

Each shop must have one sales tax license, and each beautician or barber in a shop need not apply for a sales tax license, unless the beautician or barber is an independent contractor under the criteria set forth in § 64:06:02:07.01. At the end of each reporting period a sales tax return will be mailed by the department and only one sales tax return must be filed for each shop.

Barber and beauty shops are the consumers of supplies and equipment which are consumed or used by them in rendering their services. If the sales tax on such items is not paid to a South Dakota licensed supplier when purchased, then the cost of such items must be reported as a use tax item on the sales tax return. Such items include clippers, shampoos, rinses, and other items consumed on the premises by the barber or beauty shop. Items sold to customers for their use off the premises may be purchased from suppliers exempt from sales tax because they are purchases for resale.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-4.1, 10-45-5, 10-45-25, 10-46-2.

ARSD 64:06:02:07.01 Independent contractors

The prime factor in distinguishing an employee from an independent contractor is the degree of control exercised by the employer. Other criteria which may be used to determine whether a person is an employee or an independent contractor are as follows:

(1) An employee is in the service of another, under an express or implied contract, and the employee's work is controlled by the employer, while an independent contractor is controlled by the person hiring the contractor only as to the results of the work;

(2) An independent contractor exercises rights or control over the worksite;

(3) An independent contractor may hire other workers over whom the contractor has control in matters such as hiring, firing, salary, and place and manner of work;

(4) An employee uses the equipment or material of the employer in a manner prescribed by the employer, while the independent contractor provides the labor, material, and means for accomplishing the work;

(5) An employee is generally paid an hourly rate or a monthly or annual salary, while the independent contractor is paid a specific amount for the work completed; and

(6) An independent contractor generally pays the contractor's own workers.

All of these factors are considered in determining whether a person is an independent contractor, but each case depends upon its own facts with the right to control being the most important criterion.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-25, 10-46-2.1.

ARSD 64:06:02:08 Blacksmiths and welders

Blacksmiths and welders are liable for tax on their receipts from the sales of tangible personal property and their services.

If a blacksmith makes or fabricates and sells a new article to a customer the blacksmith is liable for tax measured by the total gross receipts from the sale of this article, with no deduction for cost of production from the selling price.

Sales of tangible personal property to blacksmiths and welders, such as iron, steel, and metal for soldering for use either in manufacture of tangible personal property or in connection with repair work, are sales for the purpose of resale which are exempt from tax. Sales of oxygen, acetylene, blacksmith's coal or electrical energy are sales for consumption and taxable. Unless merchandise sold becomes an integral part in the manufacture or repair of personal property, the seller to the blacksmith must charge sales tax. If South Dakota sales tax has not been paid to a licensed vendor on supplies which do not become an integral part of the manufactured or repaired property, the cost of the supplies must be entered as a use tax item on the sales tax return.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-5.

ARSD 64:06:02:09 Repealed

Bootblacks.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:02:10 Campgrounds or trailer parks

Sales tax, municipal gross receipts tax, and the gross receipts tax on certain visitor-related businesses is due on amounts paid or charges for parking facilities in campgrounds, tourist courts, trailer parks, or similar establishments provided for transient or permanent guests. Persons furnishing camping or parking services are considered the consumers of electricity, fuel, soap, towels, furniture, any other items of tangible personal property, or any product transferred electronically purchased for use in operating the establishment.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-45D-13(3), 10-46-35.1(3), 10-52A-7(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-5.2, 10-45-7, 10-45D-2, 10-46-2, 10-46-2.2, 10-52A-2.

ARSD 64:06:02:11 Concessions at carnivals, circuses, and show troupes

All concessionaires operating under the auspices of carnivals, circuses, show troupes, and similar organizations are, for the purpose of reporting and payment of sales and use tax, municipal gross receipts tax, and the gross receipts tax on certain visitor-related businesses, be considered as agents of the operator, and shall, at the close of each place of operation, report their gross receipts and the tax on the gross receipts to the operator. The operator shall maintain a record of the gross receipts and tax of each concessionaire, which record shall be available to taxation agents, and shall remit the tax to the department or its agents at the same time and place as the operator's own payments are made.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 30 SDR 58, effective November 5, 2003.
General Authority: SDCL 10-45-47.1(3), 10-45D-13(2), 10-52A-7(2).
Law Implemented: SDCL 10-45-2, 10-45D-12, 10-52A-6.

ARSD 64:06:02:12 Repealed

Carpenters.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:13 Repealed

Carpenters -- Repair services taxable.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:14 Repealed

Carpet installation.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:15 Car washing

Gross receipts from the business of car washing or providing car washing service are subject to sales tax. A car wash is the consumer of the supplies and must pay sales tax or use tax on the cost of the supplies in addition to reporting sales tax on gross receipts from washing cars. If only a car washing service is provided and the customer washes the car, the receipts for the use of the facility are subject to sales tax in addition to the receipts from supplies dispensed to a customer by a vending machine. Supplies which are sold to a customer through a vending machine may be purchased exempt from sales tax by the car wash as a resale item.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5, 10-46-2.

ARSD 64:06:02:16 Cleaners, dryers, and laundries

Gross receipts from cleaning and pressing, dry cleaning, and laundry services are subject to sales tax. No deduction may be taken for items expended by an operator in providing the service.

Cleaning and pressing establishments must pay South Dakota sales tax to suppliers or use tax to the state on their solvents, cleaning fluids, equipment, and other supplies which are consumed by them in rendering their service. Bags and hangers which ultimately pass to the customer as part of the taxable charge may be purchased exempt from tax when purchased by the cleaning establishment.

Laundries are the consumers of electricity, any product transferred electronically, and other tangible supplies or equipment which they purchase for providing their service and must pay South Dakota sales tax to their suppliers on such items or use tax to the state. Soap which is dispensed to a customer and a charge made to a customer may be purchased exempt from tax as an item for resale, however the gross receipts from items of tangible property or any product transferred electronically dispensed by a laundry are subject to sales tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-5, 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:02:17 Repealed

Coin operated laundries -- Fees.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:18 Coin operated laundries -- Consumers

Coin operated laundries are consumers of electricity, any product transferred electronically, and other tangible supplies or equipment which purchased for providing their service and must pay sales tax to suppliers on such items or use tax to the state. Soap and other items which are dispensed to a customer and a charge made to the customer may be purchased exempt from tax as items for resale, however the gross receipts from items of tangible property or any product transferred electronically dispensed by a coin operated laundry are subject to sales tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:02:19 Repealed

Communication service.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; repealed, 29 SDR 177, effective July 2, 2003

ARSD 64:06:02:20 Communication service -- Exempt charges

Charges for connection or reconnection of telephones are taxable services. Charges for directory advertising, boldface listing, and for listing in the directory classified section are exempt.

History

Source: SL 1975, ch 16, § ; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-4, 10-45-5.2, 10-45-6.1.

ARSD 64:06:02:20.01 Sale of telephone directories

The purchase of telephone directories for distribution to subscribers is not for resale and sales tax applies at the time of purchase.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-46-2.

ARSD 64:06:02:21 Communication service -- Billing and collection

Gross receipts resulting from collection or billing services performed by a collection company or billing company for communication companies are subject to sales or use tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-5.2, 10-45-6.1, 10-46-2.1.

ARSD 64:06:02:21.01 Repealed

Communication service -- 800-number telephone services.** Repealed.

History

Source: 18 SDR 3, effective July 14, 1991; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:02:21.02 Repealed

Communication service -- Cellular telephone services.** Repealed.

History

Source: 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:02:22 Communication service -- Radio stations

Radio stations are deemed to be primarily engaged in selling advertising services and gross receipts from such sales are exempt. Charges for transmission of radio messages from person to person are subject to tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-6.1, 10-45-12.1.

ARSD 64:06:02:22.01 Satellite systems

Charges for connection of a satellite system for homeowner use are subject to sales tax. Contractor's excise tax must be remitted on all charges for the connection of a commercial system. The cost of installing poles or lines between the satellite dish and the building is subject to the contractor's excise tax.

Examples:

(1) A, a homeowner, contracts with B to install a satellite dish in the homeowner's yard for personal use. The cost of installation and connection of the system are subject to sales tax.

(2) KSD, a television station, installs a satellite system for commercial purposes. The cost of installing and connecting the system are subject to contractor's excise tax.

(3) The Rest Easy motel installs a satellite system for use by its patrons. The installation and connection costs are subject to the contractor's excise tax.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46A-19, 10-46B-18.
Law Implemented: SDCL 10-45-5.2, 10-46A-2, 10-46B-2.

ARSD 64:06:02:23 Transferred

Transferred** to § 64:07:01:13.

ARSD 64:06:02:24 Transferred

Transferred** to § 64:07:01:14.

ARSD 64:06:02:25 Transferred

Transferred** to § 64:07:01:15.

ARSD 64:06:02:26 Transferred

Transferred** to § 64:07:01:16.

ARSD 64:06:02:26.01 Repealed

Contractor defined.** Repealed.

History

Source: 17 SDR 4, effective July 18, 1990; 21 SDR 219, effective July 1, 1995; repealed, 24 SDR 43, effective October 13, 1997.

ARSD 64:06:02:26.02 Transferred

Transferred** to § 64:07:01:17.

ARSD 64:06:02:27 Repealed

Decorators, painters, and paperhangers.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:28 Dentists and dental laboratories

Dentists render a service to their patient and the gross receipts derived from this source are not subject to sales tax. If a dentist regularly sells tangible personal property such as mouthwashes, tooth brushes and the like, the dentist must have a sales tax license and report tax on the sales of such tangible personal property. Dentists who maintain laboratories and fabricate dentures or items for their patients are considered the consumers of the materials used in fabrication.

Dental laboratories that sell equipment, instruments, furniture, or dental supplies or render a repair or technical service, except preparation of dentures, to dentists, must report tax on such sales.

Declaratory Ruling: Gold and silver inserted into patients' teeth by dentists are exempt from sales tax. Secretary of Revenue Declaratory Ruling No. 77-15.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-4, 10-46-2.

ARSD 64:06:02:29 Repealed

Electricians.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 15 SDR 58, effective October 19, 1988.

ARSD 64:06:02:30 Repealed

Electricians -- Repair services.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:31 Exterminators -- Taxable services -- Consumers

The gross receipts of an exterminator are subject to sales tax unless performed for an exempt entity. Persons who fall within this taxable classification are those engaged in the business of exterminating insects, rodents and other pests.

Exterminators are the consumers of the disinfectants, chemicals, and supplies used in their service.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-2.

ARSD 64:06:02:32 Florists and nursery operators

Florists and nursery operators selling flowers, wreaths, plants, shrubs, roots, bulbs, trees, seeds, and other tangible personal property at retail are liable for tax on their gross sales, even if such merchandise is produced by the seller. If shrubbery, young trees, and similar items are sold and as part of the transaction the seller transplants them for the purchaser for a lump sum or flat rate, the entire receipts from the transaction are subject to the tax.

If a South Dakota florist receives an order pursuant to which the florist sends instructions to a second florist for delivery of flowers to a point outside South Dakota, tax is due on total receipts of the sending florist.

If a South Dakota florist receives telegraphic instructions from another florist, whether located within or outside South Dakota, for delivery of flowers, the receiving florist is not liable for tax on receipts which the florist may realize from the transaction. If orders originate in South Dakota, tax is due from the South Dakota florist who first received the order and gave telegraphic instructions to the second florist.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:02:32.01 Seeding and sodding

The laying of sod or the planting of seeds is subject to sales tax. If sodding or seeding is done in conjunction with earth moving or landscaping, it is subject to the contractor's excise tax.

Examples:

(1) A retaining wall is installed, contouring of the yard is done, and the lawn is sodded under one contract. This is subject to excise tax.

(2) The contractor merely levels the dirt, then lays the sod. This is subject to sales tax.

(3) A contractor received the bid to put up a fence and seed the highway ditch in a single contract. This is subject to excise tax.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46A-19, 10-46B-18.
Law Implemented: SDCL 10-45-5.2, 10-46A-1, 10-46B-1.

ARSD 64:06:02:33 Repealed

Transportation service.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 22 SDR 6, effective July 23, 1995.

ARSD 64:06:02:34 Freight, delivery, and other transportation charges

If the charges made by a transportation company to a retailer for transporting tangible personal property are included in the amount the retailer charges for the property, receipts from such charges are includable in the retailer's taxable receipts whether the charge is included in the sales price or stated separately.

Example:

(1) Johnson Tire Company hires Smith Parcel to deliver a tire from its Mitchell store to a customer in Parkston. Johnson charges the Parkston customer for the cost of the tire plus shipping and handling. Johnson's taxable gross receipts from the sale of the tire include the charge made for shipping and handling.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 9 SDR 28, effective September 5, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 23 SDR 2, effective July 15, 1996; 24 SDR 43, effective October 13, 1997; 30 SDR 211, effective July 1, 2004; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-1(4), 10-45-2.

ARSD 64:06:02:34.01 Repealed

Resale of transportation services.** Repealed.

History

Source: 22 SDR 6, effective July 23, 1995; 23 SDR 2, effective July 15, 1996; repealed, 30 SDR 211, effective July 1, 2004.

ARSD 64:06:02:34.02 Repealed

City garbage haulers not exempt from tax.** Repealed.

History

Source: 22 SDR 6, effective July 23, 1995; repealed, 23 SDR 2, effective July 15, 1996.

ARSD 64:06:02:34.03 Chartered flights

Chartered air flights are taxable if they have a point of origin and a destination point within the state of South Dakota.

History

Source: 22 SDR 6, effective July 23, 1995; 24 SDR 43, effective October 13, 1997.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:02:34.04 Repealed

Suburban area defined.** Repealed.

History

Source: 22 SDR 6, effective July 23, 1995; 22 SDR 9, effective October 21, 1995; repealed, 22 SDR 43, effective October 1, 1995.

ARSD 64:06:02:34.05 Repealed

Origin and destination.** Repealed.

History

Source: 23 SDR 2, effective July 15, 1996; 28 SDR 178, effective July 1, 2002; repealed, 30 SDR 211, effective July 1, 2004.

ARSD 64:06:02:34.06 Transportation company defined

A transportation company is a business enterprise primarily engaged in performing transportation services for money, credits, property, or other consideration.

History

Source: 23 SDR 2, effective July 15, 1996; 30 SDR 211, effective July 1, 2004.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-71, 10-45-72, 10-46-58, 10-46-59, 10-52-11.

ARSD 64:06:02:34.07 Transportation service defined

A transportation service is the movement of persons.

History

Source: 23 SDR 2, effective July 15, 1996; 30 SDR 211, effective July 1, 2004.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-71, 10-45-72, 10-46-58, 10-46-59, 10-52-11.

ARSD 64:06:02:34.08 Repealed

Exempt fuel transportation.** Repealed.

History

Source: 23 SDR 2, effective July 15, 1996; repealed, 30 SDR 211, effective July 1, 2004.

ARSD 64:06:02:34.09 Repealed

Small package delivery companies.** Repealed.

History

Source: 23 SDR 2, effective July 15, 1996; repealed, 24 SDR 43, effective October 13, 1997.

ARSD 64:06:02:34.10 Resale of solid waste tipping fees

Tipping fees charged at a landfill, dump, material recovery facility, transfer station, recycling site, rubble site, or other similar site to a commercial solid waste carrier may be sold for resale. If a solid waste carrier provides a valid exemption certificate, no sales tax is due on the tipping fee. Any tipping fee charged to an individual or business that is not purchasing tipping fees for resale is subject to the state sales tax.

Any person or business disposing of its own solid waste is not in the business of solid waste disposal and may not purchase a tipping fee for resale.

The gross receipts of a solid waste carrier, private or public, or any other entity charging for solid waste disposal are subject to the state sales tax. No deduction is allowed for tipping fees or any other fees passed on to the customer, even if separately charged.

History

Source: 24 SDR 43, effective October 13, 1997; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-12.1, 10-45-61.

ARSD 64:06:02:35 Repealed

Freight -- F.O.B. source of supply.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 2 SDR 40, effective December 8, 1975.

ARSD 64:06:02:36 Repealed

Freight -- F.O.B. destination.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 2 SDR 40, effective December 8, 1975.

ARSD 64:06:02:37 Repealed

Funeral directors, undertakers, and morticians.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:38 Garage and service stations

Garage and service stations are subject to sales tax. Receipts from the sale of motor fuel subject to motor fuel tax are exempt. Taxable charges include repair work, car washing, towing, greasing, tire patching, storage, and any other services performed in a garage or service station. If a garage or service station employs a second garage or service station to perform services for a customer, the one making the charge to the customer shall report the tax to the state.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-5.

ARSD 64:06:02:38.01 Tax on towing services

State sales tax and municipal sales tax on a towing service shall be determined by the destination of the vehicle towed.

Examples:

(1) A's car breaks down in a rural area of South Dakota. A hires a towing service to tow the car into the nearest town for repairs. That town is located in South Dakota and has a municipal sales tax. The place of destination determines what tax is due, so both South Dakota sales tax and the town's sales tax apply.

(2) A's car breaks down in South Dakota. A is close to the Minnesota border, so A hires a towing service to tow the car into a Minnesota town for repairs. Neither South Dakota sales tax nor any South Dakota municipal sales tax applies.

(3) A's car breaks down in a rural area of South Dakota. A's home is located close by, but not within a municipality. A hires a tow truck from the nearest town to tow the car home. South Dakota sales tax applies to the towing service, but no municipal sales tax applies because the destination is not located within a municipality.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-52-4.
Law Implemented: SDCL 10-45-5, 10-45-5.2, 10-52-2, 10-52-4.

ARSD 64:06:02:39 Garage and service stations -- Resale

Garages and service stations may purchase items for resale exempt from sales tax. Supplies which are consumed by a garage or service station and equipment are subject to sales tax when purchased from a supplier.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-2, 10-46-9.

ARSD 64:06:02:40 Janitorial supplies and services

Gross receipts from engaging in the business of furnishing janitorial supplies or services are subject to sales tax. A janitorial business is the consumer of supplies and equipment and shall pay sales or use tax on the cost of such items.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5, 10-46-2.

ARSD 64:06:02:41 Jewelers and watch repair

Gross receipts from retail sales of jewelry and other merchandise by a jewelry store are subject to sales tax. Charges for repair services by a jeweler or watch repair person are also subject to sales tax. Parts which become a part of a repaired item may be purchased by a jeweler or watch repair person exempt from sales tax because they are resold to the customer. A jeweler or watch repair person must pay use tax on the cost of equipment and supplies which the jeweler or watch repair person consumes unless the South Dakota sales tax has been paid to a licensed supplier.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-5, 10-46-2.

ARSD 64:06:02:42 Linen and towel supply

Gross receipts of a linen and towel supply business are taxable. Taxable receipts include those received from the sale of products and charges for rental or use of supplies. Charges to cafes and others for uniforms and for towels used by barbers and linens used by motels and hotels are examples of taxable receipts.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-5, 10-46-2.

ARSD 64:06:02:43 Machine work

Sales tax applies to charges of machine shops and other similar businesses for fabrication of tangible personal property for consumers.

Fabrication includes any operation which results in creation or production of an article or which is a step in a process or series of operations resulting in creation or production of an article.

Sales tax applies to the gross receipts of machine works from retail sales of tangible personal property and from repair services.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-5, 10-46-9.

ARSD 64:06:02:44 Mattress rebuilding

Mattress rebuilding is a repair service subject to sales tax because it restores tangible personal property to or near its former condition. The entire charge for rebuilding a mattress is subject to sales tax. Materials which become part of a mattress may be purchased exempt from tax by the mattress rebuilder because they pass ultimately to the customer. Other equipment and supplies purchased by a mattress rebuilder are subject to sales or use tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5, 10-46-2.

ARSD 64:06:02:45 Oculists and ophthalmologists

Services of oculists and ophthalmologists are not subject to sales tax if they render professional services confined to examination, surgery, and treatment of the eyes.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-4, 10-45-12.1.

ARSD 64:06:02:46 Repealed

Optometrists.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:02:47 Repealed

Opticians.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 2 SDR 40, effective December 8, 1975.

ARSD 64:06:02:48 Repealed

Oculists and optometrists -- Property incidentally consumed.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:02:49 Repealed

Optical supply houses and opticians.** Repealed.

History

Source: SL 1975, ch 16, § 1; 2 SDR 2, effective July 17, 1975; 7 SDR 80, effective February 22, 1981; 11 SDR 1, effective July 19, 1984; repealed, 12 SDR 111, effective January 12, 1986.

ARSD 64:06:02:50 Pawnbrokers

As used in this section, "pawnbroker" means a person who is primarily engaged in the business of lending money and who accepts tangible personal property or any product transferred electronically as security for the loan. If the property is redeemed within a specified time, sales tax applies to any commission, storage fees, or other similar charges made by the pawnbroker. If payment is not made within the specified time, the property is forfeited to the pawnbroker, to whom title to the property passes. If the pawn broker thereafter sells the property at retail, the gross receipts are subject to sales tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; 22 SDR 6, effective July 23, 1995; 22 SDR 43, effective October 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-12.1.

ARSD 64:06:02:51 Pet grooming

Gross receipts from engaging in the business of clipping, styling, or manicuring household pets are subject to sales tax. Taxable gross includes items of merchandise sold and the service performed. Persons or firms providing such services are the consumers of supplies and equipment which is used or consumed by them in rendering their services.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-5.2.

ARSD 64:06:02:52 Photographers, photo developers, and finishers

Gross receipts from photography, photo developing, finishing, and tinting are taxable. Sales of photostat copies by a photostat producer, frames, films, and other articles at retail are sales of tangible property subject to sales tax. Sales of photographs by commercial or portrait photographers are taxable. Sales of equipment to a photographer and supplies which do not become part of the product ultimately passing to a customer are subject to sales or use tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 18 SDR 3, effective July 14, 1991; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5, 10-45-12.1, 10-45-20, 10-46-2.

ARSD 64:06:02:53 Practitioners in healing arts

Charges for professional services by physicians, surgeons, chiropractors, podiatrists, osteopaths, and physical therapists are not taxable.

Sales of tangible personal property and any product transferred electronically to practitioners of the healing arts by South Dakota drug or medical supply houses are considered a sale to the consumer and subject to tax.

The purchase of X-ray equipment, operating room furniture and fixtures, and all other tangible personal property or any product transferred electronically used or consumed is subject to sales tax if purchased from a licensed dealer or subject to the use tax if purchased from an unlicensed dealer.

Declaratory Ruling: A business that provides microfiches of individuals' personal and medical history to be carried with them for emergency situations and which also keeps the histories in a data bank for use when a microfiche reader is not available, does not provide a health service and is subject to the sales tax. Secretary of Revenue Declaratory Ruling No. 80-7.

History

Source: SL 1975, ch 16, § 1; 2 SDR 2, effective July 17, 1975; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-5, 10-45-12.1, 10-46-2, 10-46-2.2.

ARSD 64:06:02:54 Repealed

Piano tuners.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 15 SDR 58, effective October 19, 1988.

ARSD 64:06:02:55 Repealed

Plumbers and plumbing contractors -- Retail sales.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 15 SDR 58, effective October 19, 1988.

ARSD 64:06:02:56 Repealed

Plumbers -- Installation and repair.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:57 Printers, engravers, multigraphers, and mimeographers

Printers, engravers, multigraphers, and mimeographers shall pay sales tax on the full charges made by them for their work unless the work is done for resale. Sales tax applies to charges for printing books, pamphlets, and brochures; to charges for setting copy in type and assembling art work plate in form; to engravers' charges for making metal plates; and to electrotypers' charges for making electrotypes or matrices.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-4, 10-45-5.2.

ARSD 64:06:02:58 Repair services

All charges for repair services, including maintenance agreements, are subject to sales tax. Repair of personal property or any product transferred electronically is a service in which property is restored to or near its former condition or usefulness. A person engaged in the repair business must have a sales tax license and report tax on the gross receipts.

Items purchased by a repair person which become part of the repaired property may be purchased exempt from sales tax by the repair person. The charges to the customer for the parts and service are taxable. Tools, equipment, and supplies consumed by a repair person are subject to sales tax when purchased. A business is liable for use tax on all items of tangible personal property and any product transferred electronically used by the business even though an item may have been especially fabricated to produce a product for a particular customer, is completely consumed in completing the customer's order, and the cost of the item is included in the charge to the customer.

A person who occasionally does some repair work but does not hold out to the public that the person does repair work is not considered to be in a repair business subject to sales tax.

History

Source: SL 1975, ch 16, § 1; 2 SDR 2, effective July 17, 1975; 13 SDR 129, 13 SDR 13,4, effective July 1, 1987; 20 SDR 103, effective January 10, 1994; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-5.

ARSD 64:06:02:59 Retirement and nursing homes

If tangible personal property or any product transferred electronically, including food, is furnished to residents by the operator of a retirement or nursing home, a taxable retail sale is made and the operator is subject to tax on those sales. Sales tax on food shall be calculated according to § 64:06:02:72 or upon actual charges.

Upon prior written approval the department may allow operators of retirement or nursing homes to pay sales tax passed on by suppliers in lieu of requiring operators to become licensed and pay sales tax directly to the department.

History

Source: SL 1975, ch 16, § 1; 9 SDR 28, effective September 5, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:02:60 Shoe repairers

Gross receipts from repair services of shoe repairers are subject to sales tax. If shoes or other merchandise are sold such items are also subject to sales tax. Repair supplies such as soles and heels may be purchased exempt from sales tax by the shoe repairers because they ultimately pass to their customers and become part of the taxable charge. A shoe repairer must pay use tax on the cost of equipment and supplies which do not become part of items repaired, unless the South Dakota sales tax has been paid to a licensed supplier.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5, 10-46-2.

ARSD 64:06:02:61 Repealed

Sign painters.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:62 Repealed

Tax return preparation.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:63 Tire treading

The gross receipts from tire retreading are subject to sales tax. If tire retreading operators purchase second hand tires and retread them, the sale of the tires is taxable. If the customer furnishes the tire, the entire charge for retreading the tire is subject to sales tax. Materials which become a part of a retread tire may be purchased exempt from tax by the tire shop. Equipment and supplies which do not become a part of a retread tire are subject to sales tax if purchased from a licensed vendor by a tire shop.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-5.

ARSD 64:06:02:64 Upholsterers

Persons engaged in reupholstering furniture belonging to others are engaged in repair service subject to sales tax. An upholsterer must report tax on receipts from customers for the service and materials. Materials which become part of repaired furniture may be purchased exempt, but supplies and equipment are subject to sales or use tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5.

ARSD 64:06:02:65 Sales to veterinarians

Veterinarians are primarily engaged in the business of rendering professional services to the owners of animals through the diagnosis, medication, and treatment of such animals and the performance of surgical operations on such animals. Veterinarians may purchase for resale medicines, bandages and dressings, serums, appliances, and tonics used by them in connection with the performance of their services if such items are injected into or placed on the animal. All other items of tangible personal property and any product transferred electronically used by veterinarians in connection with the performance of their services are subject to sales or use tax. Laboratory services purchased for a current customer may be purchased for resale.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 23 SDR 118, effective January 27, 1997; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-4, 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:02:66 Repealed

Sales by veterinarians.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 23 SDR 118, effective January 27, 1997.

ARSD 64:06:02:67 Repealed

Warranty parts and service.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:02:68 Repealed

Well drillers.** Repealed.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 19 SDR 42, effective September 29, 1992.

ARSD 64:06:02:69 Repealed

Amusements and athletic contests.** Repealed.

History

Source: 2 SDR 2, effective July 17, 1975; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:70 Amusement devices -- Mechanical

The operators or owners of coin operated mechanical machines and devices which are placed in businesses belonging to others are retailers and must hold a retail sales tax license to report the entire gross receipts from the operation of such machines and devices, and pay the sales tax thereon.

History

Source: 2 SDR 2, effective July 17, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(1).
Law Implemented: SDCL 10-58-3.

ARSD 64:06:02:71 Repealed

Hospitals -- Nonprofit, charitable, private.** Repealed.

History

Source: 2 SDR 2, effective July 17, 1975; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:02:72 Hospitals -- Taxable charges and subsistence

The sale of food and all other items of tangible personal property or any product transferred electronically to hospital patients (except those sales exempted by SDCL 10-45-14.6), visitors, employees, officials, members, and others is subject to sales tax. Sales to patients of drugs prescribed by prescription are exempt. Sales tax on food furnished to patients shall be computed at $9.66 per patient day.

Newborn care is not included as patient care for purposes of sales tax on food furnished to patients.

If subsistence is allowed or granted to a hospital employee in lieu of salary, sales tax shall be remitted on the basis of $69 per person per month.

Declaratory Ruling: Public alcohol treatment facilities approved and funded by the state division of alcoholism are not political subdivisions of the state and are not exempt from sales tax. Secretary of Revenue Declaratory Ruling No. 80-4.

History

Source: 2 SDR 2, effective July 17, 1975; 7 SDR 80, effective February 22, 1981; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-14, 10-45-14.1, 10-45-14.6.

ARSD 64:06:02:73 Hospitals -- Nontaxable charges

Charges for a hospital room, prescription drugs, and hospital services are exempt from sales tax.

Examples: Examples of nontaxable charges include: oxygen, anesthetics, intravenous solutions, plasma, drugs, antibiotics, operating room anesthetist, blood transfusions, nursery, laboratory, delivery room, basal metabolism, treatments and x-rays.

History

Source: 2 SDR 2, effective July 17, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-7, 10-45-14, 10-45-14.1.

ARSD 64:06:02:74 Hospitals -- License required -- Purchases for members or employees taxable

Hospitals must hold a sales tax license and file returns on forms provided by the department.

Sales tax must be paid on personal items furnished to officials, members, or employees without charge. If subsistence is furnished without charge or without an allowance in lieu of salary, tax shall be paid on $69 per person per month. Sisters and chaplains are considered members or employees; students are not.

History

Source: 2 SDR 2, effective July 17, 1975; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1
Law Implemented: SDCL 10-45-2, 10-45-14, 10-45-14.1.

ARSD 64:06:02:75 Lodging establishments

Sales of supplies and equipment to a lodging establishment are taxable. Lodging establishments are the consumers of supplies and equipment which are consumed or used by them in rendering their services. If the sales tax on such items is not paid to a South Dakota licensed supplier when they are purchased, the cost of such items must be reported as a use tax item on the sales tax return. Examples of such items include paper cups, plastic cups, laundry bags, soap, shower caps, toilet tissue, facial tissue, shoe polish, toilet bands, stationary, consumables and refreshments provided as a convenience to the guest, cleaning products, and other items consumed on the premises by the lodging establishment.

Charges to a lodging establishment by a laundry, linen, or towel supply company are taxable. A lodging establishment does not retail such items but purchases them or uses the services for the purpose of providing sleeping accommodations.

Laundry and dry cleaning establishments must report tax on their charges for services to hotel, motel, or tourist home guests even though payment is received from the hotel, motel, or tourist home. Hotels, motels, and tourist homes are considered agents for laundry and dry cleaning establishments and do not report tax to the department on receipts which are collected for a laundry or dry cleaner.

Declaratory Ruling: Rental of boat slips for more than 28 days, where the lessor provides a night guard, gasoline service, towing service, and a check-in system for boat owners, is the providing of a service rather than the rental of tangible personal property, and, as such, is subject to the sales tax. Secretary of Revenue Declaratory Ruling No. 80-9.

History

Source: 2 SDR 2, effective July 17, 1975; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1(3), 10-45D-13(3), 10-46-35.1(3), 10-52A-7(3).
Law Implemented: SDCL 10-45-2, 10-45-7, 10-45D-2, 10-46-2, 10-52A-2.

ARSD 64:06:02:76 Specialty cleaners

Gross receipts from the business of furnishing specialty cleaning services are subject to sales tax. A specialty cleaner is one which holds itself out to the public as providing any cleaning service. A specialty cleaner is the consumer of supplies and equipment and must pay sales or use tax on the cost of such items.

Examples: Examples include but are not limited to cleaners of: furniture, floor coverings, heating and cooling systems, walls, ceilings, plumbing and windows, and all other cleaning services to real or personal property.

History

Source: 2 SDR 2, effective July 17, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-5, 10-46-2.

ARSD 64:06:02:77 Reserved

ARSD 64:06:02:78 Computer services -- Software

The gross receipts from the sale of computer software, technical services and attendant appliances, equipment, and facilities are subject to the retail occupational sales tax.

A computer is an electronic device that accepts information in digital or similar form and manipulates the information for a result based on a sequence of instructions. Computer software is a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.

The following are examples of the services, appliances, equipment, and facilities which are taxable:

(1) Tangible personal property or any product transferred electronically such as instructions, directions, models, and layout sheets which are elements of technical service transactions;

(2) Designing and implementing of computer systems;

(3) Designing of storage and data retrieval systems;

(4) Consulting services;

(5) Feasibility studies;

(6) Evaluation of bids;

(7) Providing of technical assistance;

(8) Fees or access charges for access to data bases or networks; and

(9) Fees or access charges for access to software, programs, or computer systems.

History

Source: 2 SDR 40, effective December 8, 1975; 7 SDR 80, effective February 22, 1981; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 31 SDR 214, effective July 6, 2005; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-4, 10-45-5.2.

ARSD 64:06:02:79 Computer services -- Software -- Prewritten programs

The sale of a prewritten computer program is the sale of tangible personal property subject to sales tax. The term, prewritten computer software, includes any prewritten upgrade, which is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of two or more prewritten computer software programs or prewritten portions thereof does not cause the combination to be other than prewritten computer software. Prewritten computer software also includes software designed and developed by the author or other creator to the specifications of a specific purchaser when it is sold to another person. If a person modifies or enhances prewritten computer software of which the person is not the author or creator, the person is deemed to be the author or creator only of such person's modifications or enhancements. Prewritten computer software or a prewritten portion thereof that is modified or enhanced to any degree, when such modification or enhancement is designed and developed to the specifications of a specific purchaser, remains prewritten computer software; unless there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for such modification or enhancement, then such modification or enhancement does not constitute prewritten computer software.

History

Source: 2 SDR 40, effective December 8, 1975; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 31 SDR 214, effective July 6, 2005.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-2, 10-45-4, 10-45-5.2.

ARSD 64:06:02:80 Computer services -- Computer programming

Computer programming services include the designing and writing of custom programs and the modification or enhancements to prewritten computer software when there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for such modification or enhancement.

History

Source: 2 SDR 40, effective December 8, 1975; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 31 SDR 214, effective July 6, 2005.
General Authority: SDCL 10-45-47.1(3)
Law Implemented: SDCL 10-45-2, 10-45-4, 10-45-5.2.

ARSD 64:06:02:81 Repealed

Location of use of services.** Repealed.

History

Source: 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; repealed, 28 SDR 178, effective July 1, 2002.

ARSD 64:06:02:81.01 Taxability of nonresident attorney services used in South Dakota

Any person using services in South Dakota that are provided by a nonresident attorney is liable for use tax on the cost of the services if sales tax is not paid.

Examples:

(1) Carl Client hires Linda Lawyer, an Iowa attorney, to represent Carl in a South Dakota lawsuit. Linda does not have a license to practice law in South Dakota but, pursuant to SDCL 16-18-2, is admitted to represent Carl in Carl's lawsuit. Linda must obtain a South Dakota sales tax permit. Linda does not pay sales tax on gross receipts from the services provided by Linda to Carl because Linda's office is in Iowa. Carl will owe use tax because the service is used for a lawsuit in South Dakota.

(2) Ivana Inventor, a South Dakota resident, hires Adam Attorney, a Minnesota attorney, to obtain a patent for Ivana. Adam is not licensed to practice law in South Dakota and is not required to comply with SDCL 16-18-2. Adam's legal services to obtain the patent are used by Ivana in South Dakota and Ivana is liable for use tax.

History

Source: 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 24 SDR 180, effective July 1, 1998; 31 SDR 214, effective July 6, 2005; 41 SDR 173, effective May 14, 2015.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-4, 10-45-4.1, 10-45-5.2, 10-45-108, 10-46-2.1, 10-46-18.1.

ARSD 64:06:02:82 Accessories, equipment, and repair or replacement parts on motor vehicles

Additional accessories or equipment added to motor vehicles are not subject to sales or use tax if they are included in the bill of sale and the amount upon which the motor vehicle excise tax is based.

History

Source: 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-2, 10-46-3.

ARSD 64:06:02:83 Rental facilities

Gross receipts resulting from services performed by the owner of a rental facility are taxable if they are offered as an optional service to the renter and are separately charged.

Examples:

(1) Ann Adams rents an office from the U Rent It Agency for $1,000 a month. Included in the rental fee are electricity, heat, water, and janitorial services. For an additional $25 per month, U Rent It will provide security guard services. The $1,000 rental fee is not taxable, but the $25 optional service is subject to tax.

(2) Sam Smith rents an apartment from Condo Heaven. The basic rent of $1,000 a month includes the apartment, parking space, water, and garbage collection. For an additional $10 a month, the owner will provide weekly laundry and dry cleaning pickup and delivery. The $1,000 rental fee is not subject to tax, but the $10 laundry fee is a taxable service.

History

Source: 17 SDR 4, effective July 18, 1990; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1, 10-46-40.
Law Implemented: SDCL 10-45-4.1, 10-45-5.2, 10-45-7, 10-45-12.1, 10-46-2.1.

ARSD 64:06:02:84 Hunting and fishing rights

A landowner who exclusively grants to another the right to hunt or fish on the landowner's property for an annual or seasonal fee is not subject to tax on that amount. A written agreement, filed with the register of deeds, containing the terms of the contract, including the price for the grant and a legal description of the property, is evidence of a grant of property rights which is not taxable. Any services provided by the landowner are subject to tax.

A landowner who allows hunting or fishing on the landowner's property, not under an exclusive grant in writing, is subject to tax on the gross receipts.

Examples:

(1) Farmer Brown agrees to lease land for hunting purposes to the ABC corporation. A written agreement is entered into stating the fee charged, the description of the land to be hunted on, and the time hunting may occur. Farmer Brown also agrees to release a certain number of birds during the hunt and to plant cover crops on the land to be hunted. Additionally, Farmer Brown will provide a new access road and a campground area for the hunters to stay at. The agreement is filed with the Register of Deeds.

Although an agreement is entered into which suggests a nontaxable lease of real property, services are furnished which are taxable. Because the services are not separately stated, the entire amount of the fee is subject to tax.

If separate fees are listed for the leasehold interest and the services provided, tax is due only on the services provided.

(2) Each year Farmer Smith allows hunters to come onto Farmer Smith's land to hunt and fish. Farmer Smith charges $50 a person to hunt and $15 a person to fish. Farmer Smith limits the number of hunters to five and fishers to seven and only allows them on the property from 8 o'clock a.m. until 5 o'clock p.m. All of Farmer Smith's gross receipts from allowing hunting and fishing on the property are taxable.

History

Source: 17 SDR 4, effective July 18, 1990; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1(3), 10-45D-13(3).
Law Implemented: SDCL 10-45-4.1, 10-45-5.2, 10-45-7, 10-45-8, 10-45D-2.

ARSD 64:06:02:85 Real estate brokers

Any commission received by a real estate broker or agent, under any type of agency agreement, is subject to the state sales tax unless the commission is otherwise specifically exempted. Any fee originating from the sale of real property sold in the state of South Dakota, regardless of the broker's or agent's residence, is subject to sales tax. Municipal sales tax applies to any sale of real property located within the municipality's limits.

Examples:

(1) A real estate broker takes a listing on a home in Pierre. Under the multiple listing agreement, another agent sells the property. The listing broker collects the commission and the state and city sales tax. The broker then distributes the selling agent's percentage of the commission and the applicable sales tax to the selling agent. The listing broker remits state and city sales tax on that portion of the commission to which the broker was entitled. The selling agent remits state and city sales tax on the portion the selling agent received.

(2) A real estate broker takes an exclusive listing on an acreage in rural South Dakota. The broker collects the commission and state sales tax after the property is sold and remits the sales tax to the department.

History

Source: 17 SDR 4, effective July 18, 1990; 28 SDR 178, effective July 1, 2002
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-5.2.

ARSD 64:06:02:86 Marina defined

For the purpose of the tax imposed by SDCL 10-45D-7, a marina is a business that owns or operates secure moorings for boats at a dock or basin. A marina includes any supply, repair, and other facilities provided in addition to secure moorings. A secure mooring is a boat slip or other device used to dock or store a boat for an extended period of time. The ability to tie a boat to a space for a short period, such as during dinner, is not a secure mooring.

History

Source: 24 SDR 43, effective October 13, 1997; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45D-13(3).
Law Implemented: SDCL 10-45D-12.

ARSD 64:06:02:87 Taxation of persons providing medical expert testimony or consulting services

Medical expert consulting services and medical expert testimony associated with litigation are not health services and the gross receipts for providing such services are subject to sales tax. Services provided to a patient associated with diagnosis or treatment are health services and are not subject to sales tax pursuant to SDCL 10-45-12.1. Services concerning diagnosis or treatment that are incidental to consulting services associated with litigation constitute health services and are not subject to sales tax.

History

Source: 24 SDR 97, effective January 25, 1998; 24 SDR 137, effective April 15, 1998.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-4, 10-45-4.1.

ARSD 64:06:02:88 Travel agency reservation services

Any gross receipts received by a retailer providing reservation services to a travel agency are subject to sales tax. If the charge by the retailer for providing a reservation service is subject to a discount, then only the actual gross receipts received by the retailer are subject to sales tax.

This section applies to any receipts the retailer receives from airline boarding fees, hotel and motel reservation fees, and automobiles, buses, trains, cruise lines, and other transportation reservation fees.

If the retailer provides tangible personal property or any product transferred electronically that is an integral component of the reservation service to a travel agency, then the retailer is deemed to be the user of the tangible personal property or the product transferred electronically and is liable for use tax on the purchase price of the tangible personal property and the product transferred electronically if sales tax has not previously been paid.

Example:

Zeus Travel, Inc. provides reservation services to ABC Travel Agency. As part of the contract between Zeus and ABC, ABC shall pay Zeus $500 each month for use of the reservation service. If ABC books 100 trips each month using Zeus' reservation service, then Zeus will give ABC a $500 discount on the monthly fee. If ABC is eligible for the discount, Zeus may deduct $500 from its gross receipts.

As part of the reservation service, Zeus provides ABC with a tangible personal property such as a computer and software. The computer, software, and other tangible personal property are integral components to the reservation service provided by Zeus. Zeus is liable for use tax on the computer and other tangible personal property provided to ABC.

History

Source: 24 SDR 180, effective July 1, 1998; 35 SDR 48, effective September 8, 2008; 38 SDR 214, effective June 21, 2012.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-4, 10-45-2.4, 10-45-5, 10-46-2, 10-46-2.2.

ARSD 64:06:02:89 Professional employer organization -- Definition of co-employment relationship

A co-employment relationship results from a contract between a professional employer organization and a client company. In order for a co-employment relationship to exist, the contract must stipulate that:

(1) The professional employer organization assumes the responsibilities listed in this subdivision, including the payment of wages, salaries, payroll taxes, payroll deductions, workers compensation costs, insurance premiums, welfare benefits, and retirement benefits, and preparing and filing necessary tax returns and other documents as required by state or federal law;

(2) The client company must be the employer to any existing employees prior to the contractual relationship with the professional employment organization;

(3) The client company retains primary control over the hiring, firing, wage rates, salary increases, training, and directing the day-to-day activities of the co-employees;

(4) If the contractual relationship between the professional employer organization and the client company is terminated, then the co-employees' employment with the professional employer organization is also terminated;

(5) If a co-employee leaves the employment of the client company, that co-employee's employment is terminated with the professional employer organization; and

(6) The professional employment organization does not manage or direct the operation of the client company's business.

History

Source: 25 SDR 167, effective July 1, 1999; 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-97.

ARSD 64:06:02:89.01 Application for a professional employer organization permit

Each professional employer organization, doing business in South Dakota, must be approved by the Department as a professional employer organization, as defined in SDCL 10-45-97 and § 64:06:02:89. The professional employer organization must apply in writing to the secretary on a form provided by the secretary. The form shall contain the applicant's name and address and client's name and address. A copy of the contract between the professional employer organization and the client must be filed with the form.

If a professional employer organization does not meet the qualifications of SDCL 10-45-97 and § 64:06:02:89 the organization will be required to pay sales tax on all fees charged between the organization and the client with no deduction for actual disbursements, including appropriate reserves, for the wages, salaries, payroll taxes, payroll deductions, workers' compensation costs, insurance premiums, welfare benefits, retirement benefits, and other employee benefits of its co-employees, unless otherwise exempt pursuant to SDCL chapter 10-45.

History

Source: 38 SDR 214, effective June 21, 2012.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-96, 10-45-97.

ARSD 64:06:02:90 Definition of terms

Terms used in §§ 64:06:02:90 to 64:06:02:92, inclusive, mean:

(1) "Air-to-ground radiotelephone service," a radio service, as that term is defined in 47 C.F.R. 22.99 (October 1, 2001), in which common carriers are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft;

(2) "Ancillary services," any service that is associated with or incidental to the provision of telecommunications services, including detailed telecommunications billing, directory assistance, vertical service, and voice mail services;

(3) "Call-by-call basis," any method of charging for telecommunications services where the price is measured by individual calls;

(4) "Communications channel," a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points;

(5) "Customer," the person or entity that contracts with the seller of telecommunications services. If the end user of telecommunications services is not the contracting party, the end user of the telecommunications service is the customer of the telecommunications service, but this sentence only applies for the purpose of sourcing sales of telecommunications services under §§ 64:06:02:90 to 64:06:02:92, inclusive. A customer does not include a reseller of telecommunications service, or, for mobile telecommunications service, a serving carrier under an arrangement to serve the customer outside the home service provider's licensed service area;

(6) "Customer channel termination point," the location where the customer either initiates or receives the communications;

(7) "End user," the person who utilizes the telecommunications service. In the case of an entity, the term end user means the individual who utilizes the service on behalf of the entity;

(8) "Home service provider," the same as that term is defined in Section 124(5) of Pub. L. No. 106-252 (Mobile Telecommunications Sourcing Act) (July 28, 2000);

(9) Mobile telecommunications service," the same as that term is defined in Section 124(7) of Pub. L. No. 106-252 (Mobile Telecommunications Sourcing Act) (July 28, 2000);

(10) "Place of primary use," the street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. In the case of mobile telecommunications services, "place of primary use" must be within the licensed service area of the home service provider;

(11) "Post-paid calling service," the telecommunications service obtained by making payment on a call-by-call basis either through the use of a credit or payment mechanism such as a bank card, travel card, credit card, debit card, or by charge made to a telephone number which is not associated with the origination or termination of the telecommunications service. A post-paid calling service includes a telecommunications service, except a prepaid wireless calling service, that would be a prepaid calling service except it is not exclusively a telecommunications service;

(12) "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;

(13) "Prepaid wireless calling service," a telecommunications service that provides the right to utilize mobile wireless service as well as other non-telecommunications services, including the download of digital products delivered electronically, content and ancillary services, which must be paid for in advance and is sold in predetermined units or dollars of which the number declines with use in a known amount;

(14) "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;

(15) "Service address,":

(a) The location of the telecommunications equipment to which the customer's call is charged and from which the call originates or terminates, regardless of where the call is billed or paid;

(b) If the location in subsection (a) of this subdivision is not known, service address means the origination point of the signal of the telecommunications service first identified by either the seller's telecommunications system or in information received by the seller from its service provider, where the system used to transport such signals is not that of the seller; and

(c) If the locations in subsection (a) and (b) of this subdivision are not known, service address means the location of the customer's place of primary use.

History

Source: 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007; 35 SDR 165, effective December 23, 2008.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:02:91 Default sourcing rule for telecommunications services

Except for the telecommunications services listed in § 64:06:02:92, the sale of telecommunications service sold on a call-by-call basis shall be sourced to each level of taxing jurisdiction where the call originates and terminates in that jurisdiction or each level of taxing jurisdiction where the call either originates or terminates and in which the service address is also located. A sale of telecommunications service sold on a basis other than a call-by-call basis, is sourced to the customer's place of primary use.

History

Source: 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:02:92 Rules for sourcing specific telecommunications services

The sales of these telecommunications services shall be sourced to each level of taxing jurisdiction as follows:

(1) A sale of mobile telecommunications service, other than air-to-ground radiotelephone service and prepaid calling service, is sourced to the customer's place of primary use as required by Pub. L. No. 106-252 (Mobile Telecommunications Sourcing Act) (July 28, 2000);

(2) A sale of post-paid calling service is sourced to the origination point of the telecommunications signal first identified by either the seller's telecommunications system, or information received by the seller from its service provider, where the system used to transport such signals is not that of the seller;

(3) A sale of prepaid calling service or a sale of a prepaid wireless calling service is sourced as tangible personal property. However, in the case of a sale of a prepaid wireless calling service, the seller may source the sale to the location associated with the mobile telephone number;

(4) A sale of private communication service is sourced as follows:

(a) Service for a separate charge related to a customer channel termination point is sourced to each level of jurisdiction in which such customer channel termination point is located;

(b) Service where all customer channel termination points are located entirely within one jurisdiction or levels of jurisdiction is sourced in such jurisdiction in which the customer channel termination points are located;

(c) Service for segments of a channel between two customer channel termination points located in different jurisdictions when each segment is separately charged, is sourced 50% in each level of jurisdiction in which the customer channel termination points are located;

(d) Service for segments of a channel located in more than one jurisdiction or levels of jurisdiction and each segment is not separately billed, is sourced in each jurisdiction based on the percentage determined by dividing the number of customer channel termination points in such jurisdiction by the total number of customer channel termination points;

(5) The sale of Internet access service is sourced to the customer's place of primary use; and

(6) The sale of an ancillary service is sourced to the customer's place of primary use

History

Source: 28 SDR 178, effective July 1, 2002; 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-108.
Law Implemented: SDCL 10-45-108.

ARSD 64:06:02:93 Exemption of continuing education programs

The sales tax exemption for continuing education programs in SDCL 10-45-12.1 applies only to instructional classes approved by the governing board of an occupation with continuing education requirements. Nonmembers of the occupation who attend the class are not exempt from sales tax.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-4.

ARSD 64:06:02:94 Repairs to rental inventory

The gross receipts for parts, repairs, maintenance items, and maintenance services on rental inventory are subject to sales or use tax.

History

Source: 33 SDR 226, effective June 27, 2007.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-1.5, 10-45-20.6.

ARSD 64:06:02:95 Repealed

Definition of telecommunications services.** Repealed.

History

Source: 33 SDR 226, effective June 27, 2007; repealed, 35 SDR 48, effective September 8, 2008.

ARSD 64:06:02:96 Repealed

Definition of ancillary services.** Repealed.

History

Source: 33 SDR 226, effective June 27, 2007; repealed, SL 2009, ch 47, § 9, effective July 1, 2009.

ARSD 64:06:02:97 Repealed

Definition of interstate telecommunications services.** Repealed.

History

Source: 33 SDR 226, effective June 27, 2007; repealed, SL 2009, ch 47, § 10, effective July 1, 2009.

ARSD 64:06:02:98 Application of municipal gross receipts tax to fitness club

Application of municipal gross receipts tax to fitness clubs.** For the purpose of applying the provisions of SDCL chapter 10-52A, a pass or membership to a fitness club is not considered an admission to a place of amusement or athletic event.

History

Source: 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-52A-7(3).
Law Implemented: SDCL 10-52A-2.

ARSD 64:06:02:99 Application of tourism tax to fitness clubs

For the purpose of applying the provisions of SDCL subdivision 10-45D-1(4), a pass or membership to a fitness club is not considered a recreational service or rental of recreational equipment.

History

Source: 37 SDR 48, effective September 21, 2010.
General Authority: SDCL 10-45D-13(3).
Law Implemented: SDCL 10-45D-1(4).

Chapter 64:06:03 Products -- Interpretive rules

ARSD 64:06:03:00 Definitions

Terms used in this chapter mean:

(1) "Agricultural land," any land as defined in SDCL 10-6-31.3;

(2) "Agricultural products," all those products commonly known and referred to as food and fiber, including dairy products, livestock, growing crops, and the like, which are produced, raised or grown upon agricultural land;

(3) "Nonagricultural purpose," the purchase and use of a farm machine, attachment unit, or irrigation equipment for any purpose other than for an agricultural purpose;

(4) "Attachment unit," any part or combination of parts having an independent function, other than a replacement part or parts, which when attached or affixed to a farm machine, motor vehicle, or other piece of agricultural equipment is used for agricultural purposes;

(5) "Newspaper," a publication intended for general circulation published regularly at daily or weekly intervals, consisting of printed sheets without substantial binding bearing a date of issue and numbered consecutively, not devoted to the expression of opinions, but to intelligence of current events and news of general interest and which routinely reports a myriad of topics so that it appeals to a wide spectrum of the general public. Publications generally referred to as magazines are not newspapers.

History

Source: 5 SDR 60, effective January 25, 1979; 7 SDR 80, effective February 22, 1981; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 2, 2003; 32 SDR 58, adopted October 5, 2005, effective January 1, 2006; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(3), 10-46E-11(3).
Law Implemented: SDCL 10-45-3.4, 10-45-15, 10-45-15.1, 10-45-16, 10-45-16.1, 10-45-19, 10-46E-8.

ARSD 64:06:03:01 Agricultural products

Gross receipts from sales of farm products by a farmer for resale are not subject to sales tax. If a farmer holds out to the public as a seller of farm products and makes regular sales to consumers, the farmer is in a retail business and must have a sales tax license and report the tax on such sales. A farmer making occasional sales of farm products to consumers is not required to have a sales tax license and report sales tax on the sales.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-18.

ARSD 64:06:03:02 Repealed

Unprocessed agricultural products traded for processed agricultural products.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 35 SDR 48, effective September 8, 2008.

ARSD 64:06:03:03 Repealed

Eggs traded for groceries not exempt.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 35 SDR 48, effective September 8, 2008.

ARSD 64:06:03:04 Alcoholic beverages

Gross receipts from all sales at retail of alcoholic beverages, as defined by SDCL 35-1-1(4), whether mixed or unmixed at the time of sale or thereafter and whether sold for consumption on the premises or through off-sale outlets for consumption off the premises, are subject to sales tax and the municipal gross receipts tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1(3), 10-52A-7(3).
Law Implemented: SDCL 10-45-2, 10-52A-6.

ARSD 64:06:03:05 Repealed

Gasoline.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:03:06 Articles made to order

If manufacturers, fabricators, or retailers agree for a fixed price to furnish material and fabricate articles of tangible personal property for sale to a final user or consumer, the total receipts from the sale of the articles are subject to the sales tax. The manufacturers, fabricators or retailers may not deduct labor or service costs of fabrication or production from the sales tax base even though these charges may be billed separately to customers apart from charges for materials.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:03:07 Repealed

Cigarettes, cigars, and tobacco.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 15 SDR 58, effective October 19, 1988.

ARSD 64:06:03:08 Repealed

Containers to be used for resale are exempt.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 9 SDR 28, effective September 5, 1982.

ARSD 64:06:03:09 Containers

A container is an article whose major function is as a receptacle or flexible covering for shipment or transportation of goods. Items such as molds, dies, or castings, the chief purpose of which is for use in a manufacturing or fabricating process rather than for shipping or transportation, are not containers.

Containers are taxable as follows:

(1) Containers and similar articles, such as drums, cartons, pallets, and shipping cases, used or consumed by manufacturers, processors, or fabricators are not subject to sales or use tax. A manufacturer, processor, or fabricator is one who produces, whether by hand or machinery, a new or different article or product from raw or prepared materials. To constitute manufacturing, processing, or fabricating, there must be some substantial or significant change in the basic materials;

(2) Sales of certain containers to retailers are exempt from tax. The retailer exemption applies only to paper and plastic bags, wrapping paper, twine, tape, and similar articles which are used to hold other property sold by the retailer which is subject to sales or use tax. The containers must be supplied free as a convenience to the customer;

(3) Gross receipts from sales of containers to retail customers are subject to tax. If title to the container passes to the customer, the receipts are subject to tax even when the receipt is called a deposit. Passage of title to the container is indicated by the following:

(a) Containers are not identified to a particular retailer by a logo, stamp, inventory number, or other means;

(b) The retailer will refund the deposit on any container returned regardless of where the container was obtained;

(d) The retailer makes no effort, such as a phone call or letter, to get the container back if it is not returned; and

(e) An invoice, sales slip, or other document may contain language showing passage of title.

History

Source: SL 1975, ch 16, § 1; 6 SDR 10, effective August 5, 1979; 9 SDR 28, effective September 5, 1982; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-14.4, 10-45-14.5, 10-46-9.3, 10-46-9.4.

ARSD 64:06:03:10 Repealed

Containers delivered with merchandise sold are exempt.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 9 SDR 28, effective September 5, 1982.

ARSD 64:06:03:11 REA and RTA cooperatives

Rural electric cooperatives and mutual or cooperative telephone companies must pay sales or use taxes on purchases made by them for final use or consumption. These organizations must also collect and remit sales tax on all retail sales made by them. Electrical supplies purchased by rural electric cooperatives, mutual or cooperative telephone companies, or other centrally assessed utilities and specifically intended for use outside the city limits are not subject to municipal sales or use tax when stored within the city limits.

Declaratory Ruling: A company which generates electricity for resale to local cooperatives must pay excise tax on the total gross receipts from sales within the state whether the power is delivered over facilities which it owns or over facilities owned by others. Secretary of Revenue Declaratory Ruling No. 77-11.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1, 10-52-4.
Law Implemented: SDCL 10-45-2, 10-46-2, 10-52-2, 10-52-4.

ARSD 64:06:03:12 Stock used for demonstration or personal use

Items temporarily withdrawn from stock for demonstration purposes are not subject to tax at the time of withdrawal from stock. When such items are sold at retail, the tax applies.

Property withdrawn for purposes other than demonstration, such as for personal use or other commercial use, is subject to the use tax when withdrawn. If it is later sold at retail, it is subject to sales tax on the sale price without any deduction for the use tax paid.

Examples:

(1) L, a lawn mower dealer, uses a mower from stock to mow the lawn around the establishment. L must pay use tax on the use of this mower. When the mower is later resold, L must collect and remit sales tax on the price of the mower.

(2) A customer wants to buy a lawn mower from L but wants to see several models. L demonstrates each mower by letting the customer mow the grass around L's establishment. The customer decides on the model and purchases it. Sales tax is due on the sale of that mower, but no tax is due on the use of the other mowers the customer tried out before purchasing the chosen mower.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-2, 10-46-4.

ARSD 64:06:03:13 Electric energy and natural or artificial gas

The sale of electric energy and natural or artificial gas is taxable if sold to consumers or users. Sales to other distributing companies or municipalities who are resellers are not taxable. Sales by municipalities are taxable. Sales of materials, supplies, and equipment to utility companies are subject to tax. Charges for connection or reconnection of the service are taxable.

Declaratory Ruling: Heating fuel used to maintain soil and atmospheric temperature in greenhouse for production of bedding and ornamental plants is not a component part of the plants produced, and is subject to the sales tax. Secretary of Revenue Declaratory Ruling 81-7.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-4, 10-45-5.2, 10-45-6.

ARSD 64:06:03:14 Repealed

Farm chemicals.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:03:15 Farm machinery

A farm machine is a mechanical unit purchased and used directly and principally for agricultural purposes and includes those items commonly and usually referred to as farm machinery and attachment units. Farm machinery does not include motor vehicles or equipment otherwise licensed or taxed by the state of South Dakota.

Tools, shop equipment, grain bins, feed bunks, fencing materials, snowmobiles, and lawn mowers are not farm machines. Grain storage facilities, barn cleaners, milking systems, and automatic feeding systems which are installed and become part of real property are not farm machines and the installation of these systems is subject to contractors' excise tax under 10-46A.

Examples of farm machinery: Machinery for dairy farms; machinery for the preparation, seeding, or cultivation of soil for growing agricultural crops; and machinery for harvesting and threshing of agricultural products.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 32 SDR 58, adopted October 5, 2005, effective January 1, 2006; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(3), 10-46E-11(3).
Law Implemented: SDCL 10-45-3.4, 10-46E-8.

ARSD 64:06:03:16 Repealed

Farm implement dealers -- Repair and replacement parts.** Repealed.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; repealed, 16 SDR 76, effective November 1, 1989.

ARSD 64:06:03:17 Farm machines eligible for special tax -- Exceptions

Repealed.

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 32 SDR 58, adopted October 5, 2005, effective January 1, 2006.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-3, 10-46-2.

ARSD 64:06:03:18 Furs and furriers

Sales of furs to customers are taxable. Receipts from repairing, altering, or cleaning fur garments are subject to sales tax. Charges for storing furs are taxable.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-4, 10-45-5, 10-45-5.2.

ARSD 64:06:03:19 Irrigation equipment

The term irrigation equipment includes pumps, pipe, fittings, valves, sprinklers, and other equipment necessary to the operation of an irrigation system.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 20 SDR 196, effective February 22, 1994; 21 SDR 219, effective July 1, 1995; 32 SDR 58, adopted October 5, 2005, effective January 1, 2006; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(3), 10-46E-11(3).
Law Implemented: SDCL 10-45-3.4, 10-46E-8.

ARSD 64:06:03:20 Ice

Sales of ice include sales for household use as well as for refrigeration purposes. All sales of ice are taxable unless the ice becomes an ingredient part of food or drink to be sold at retail or unless the ice is sold for resale.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:03:21 Labels and name plates

Sales of labels and name plates are taxable if made to a consumer or user. Price labels, content labels, and description labels sold to manufacturers or retailers for attachment to property to be sold at retail are not subject to sales or use tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-2.

ARSD 64:06:03:22 Dressed meat

The sale of livestock and live poultry by farmers, feeders, dealers, and produce houses to persons to slaughter for their own use are classed as sales of dressed meat and are subject to sales or use tax.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-18, 10-46-16.

ARSD 64:06:03:22.01 Household pets

Receipts from the sale of household pets are considered sales of tangible personal property and are taxable.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; transferred from § 64:06:03:22, 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-18, 10-46-16.

ARSD 64:06:03:23 Machinery and fixtures sold to manufacturers and other businesses

Gross receipts from sales of machinery, tools, bolts, and other equipment to a manufacturer, producer, or contractor and gross receipts from sales of furniture, fixtures, supplies, stationary, equipment, appliances, instruments, and tools to stores, shops, business establishments, offices, and professional people for use in carrying on their business or professional activities are taxable. Such sales are to final buyers or ultimate consumers and are not sales for resale. If sales tax is not paid to suppliers at the time of purchase, use tax must be paid directly to the department.

Purchases of tangible personal property or any product transferred electronically which by manufacture, compounding, or fabrication, becomes an integral part of other tangible personal property to be sold ultimately at retail are not subject to sales or use tax. Sellers of such property must obtain an exemption certificate.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 30 SDR 58, effective November 5, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-45-61, 10-46-2.2, 10-46-9.

ARSD 64:06:03:23.01 Determination of age of tangible personal property

For purposes of the exemption in SDCL 10-46-3, tangible personal property or any product transferred electronically must be more than seven years old as determined by its date of manufacture, if documented, or by the date of the purchase by the person bringing it into this state. In addition, the tangible personal property or any product transferred electronically must have been purchased originally for use in another state by the person subsequently bringing it into this state for the person's use.

History

Source: 17 SDR 4, effective July 18, 1990; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-46-35.1(3).
Law Implemented: SDCL 10-46-3.

ARSD 64:06:03:24 Items consumed in a manufacturing process

Gross receipts from sales to manufacturers, producers, or processors, including flour mills, bakeries, or creameries, any product transferred electronically, of tangible personal property of any kind, including gas, fuel, electricity, tools, and other property which is used by such manufacturers in the manufacturing process and which does not become an ingredient or component part of the tangible personal property manufactured, produced, or processed, are taxable. The manufacturer, producer, or processor is the final buyer or ultimate consumer of the tangible personal property and does not purchase it for resale. The tangible personal property and any product transferred electronically so purchased is not purchased by the manufacturer for the purpose of resale but for the operation of the business. If sales tax is not paid to a licensed South Dakota supplier, use tax must be paid to the state.

A business is liable for use tax on all items of tangible personal property and any product transferred electronically used by the business even though an item may have been especially fabricated to produce a product for a particular customer, is completely consumed in completing the customer's order, and the cost of the item is included in the charge to the customer.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:03:25 Component parts of manufactured items

Gross receipts from sales to manufacturers, producers, or processors of tangible personal property or any product transferred electronically which enters into and becomes an ingredient or component part of the tangible personal property which they manufacture, produce, or process are not taxable. The fact that the article manufactured, produced, or processed is in a different form or of a different character is immaterial.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-46-9.

ARSD 64:06:03:26 Meals

Receipts from meals furnished by restaurants, hotels, and boarding houses are taxable. If meals are furnished by proprietors of cafes, restaurants, or boarding houses to employees and a separate charge is made, sales tax must be paid on the receipts. If the employer furnishes meals to employees as part consideration for employment, the restaurant, cafe, or boarding house is liable for the state and municipal use tax upon the cost of the meals so furnished to the employees. This tax includes the applicable municipal and state sales and use taxes.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3), 10-52-4, 10-52A-7(3).
Law Implemented: SDCL 10-45-2, 10-46-2, 10-52-2, 10-52-4, 10-52A-2.

ARSD 64:06:03:27 Memorial dealers

Memorial dealers are retailers of tombstones, markers, other memorials, and materials, such as cement, used in setting the memorial in the cemetery.

If memorial dealers agree to furnish a memorial and set it in the cemetery, tax applies to the entire amount charged. No deduction may be made for charges for installation, cutting, shaping, polishing, or lettering the memorial or for transporting the memorial to the cemetery.

If cemeteries construct foundations for memorials and collect the charges for the foundations from memorial dealers, the memorial dealers are the retailers of the foundations. The memorial dealers shall collect the charges for the foundations or the materials used to make the foundations from their customers or shall include the charges for the foundations in their charges for furnishing the memorials. The memorial dealers shall pay the tax to the state on the charges made for the foundations as well as on the charges for the memorials. In constructing the foundations the cemeteries are acting as the agents of the memorial dealers.

If cemeteries collect charges for foundations directly from the customers of the memorial dealers, the cemeteries are the retailers of the foundations and shall pay the tax to the state on the charges made.

History

Source: SL 1975, ch 16, § 1; 8 SDR 81, effective January 10, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-4, 10-46-2.

ARSD 64:06:03:28 Mining companies

Mining companies are the consumers of all materials and supplies purchased for their mining operations except property which becomes a component part of the product produced for resale. As consumers, the mining companies must pay sales tax to suppliers or use tax to the state.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-2.

ARSD 64:06:03:29 Repealed

Motor fuels.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:03:30 Repealed

Motor vehicles.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:03:31 Repealed

Modular, sectional, and mobile homes.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:03:32 Newsprint and printing supplies

The purchase of raw newspaper is exempt. All other purchases of materials used in printing, such as type and printing equipment, are subject to sales or use tax, except such items which are purchased for resale.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-46-9.

ARSD 64:06:03:33 Publications and inserts

Gross receipts from the sale of all publications are subject to the retail occupational sales tax. Sales or use tax applies to charges for printing advertising inserts prepared predominantly for a single advertiser which are inserted as a separate section in the newspaper, shopper's guide, or publication. Advertising printed for a single advertiser is considered an integral part of the newspaper or shoppers' guide if it is printed on the same paper stock and paper size as the newspaper or shopper's guide, it is folded in the same manner as and sequentially numbered with the rest of the newspaper or shopper's guide, and it is distributed with the newspaper or shoppers' guide

History

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 8, 1975; 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; 25 SDR 167, effective July 1, 1999.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-12.1, 10-45-14.2.

ARSD 64:06:03:34 Repealed

Postage.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:03:35 Premiums and gifts

Donors of tangible personal property or any product transferred electronically known as premiums or gifts are regarded as the consumers of the premiums or gifts, and they must pay sales tax when such items are purchased or use tax when the items are removed from stock or purchased exempt from sales tax. Gross receipts from the sale of goods which are to be given away for advertising purposes are taxable. If goods purchased by a retailer for the purpose of resale are subsequently given away for advertising purposes, the retailer must include, under value of merchandise taken from stock for the retailer's own and family use and use of the retailer's employees, the cost of the goods to the retailer and must pay use tax on the cost of the goods. Those goods given without charge to an institution, organization, or group exempt from this tax are not taxable.

Purchasers of property which is to be awarded as prizes, the winning of which depends upon chance or skill, are regarded as the consumers of the property, and the tax applies to gross receipts from the sale of the property to the purchasers.

The operator of a game of skill or a game of chance is the consumer of the property used in connection with such operations, and the tax applies to gross receipts from sales of tangible personal property and any product transferred electronically to the operator.

Example: A butcher shop donates 50 pounds of beef to the Salvation Army for use in its soup kitchen. The beef is not taxable because it was given to an exempt organization.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-46-2, 10-46-2.2, 10-46-15.4.

ARSD 64:06:03:36 Vendors of property used for premiums, advertising, and prizes

Persons engaged in the business of selling tangible personal property and any product transferred electronically to purchasers who give such property away in the advertising of their business or products, as premiums in connection with the sale of any other property, as prizes, or for any other reason are engaged in the business of selling tangible personal property and products transferred electronically for use or consumption and not for resale. Such vendors must have a retail sales tax license and collect sales tax on all items used for advertising purposes, premiums, or prizes.

Example: A bar gives away beer hats to its customers as an advertising gimmick. The person selling the hats to the bar must collect and remit sales tax on the hats.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:03:37 Railway dining cars -- Airline dining

The sales of meals, alcoholic beverages, other tangible personal property, or any product transferred electronically on railway trains, club cars, lounge cars, or dining cars and on airplanes being operated through the state of South Dakota, constitute sales at retail, the gross receipts from which are taxable, if the meals, alcoholic beverages, or other tangible personal property are ordered or delivered within the boundary lines of this state. It is immaterial whether or not such meals, alcoholic beverages, other tangible personal property, or any product transferred electronically are consumed within the boundary lines of this state.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-52A-7(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-52A-2.

ARSD 64:06:03:38 School lunches

Sales of groceries and supplies to a school for operation of a school lunch program are exempt from sales tax. A school providing lunches to students under the school lunch program is not required to remit tax on receipts from the school lunch program.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-10, 13-35-3.

ARSD 64:06:03:39 Secondhand stores

Secondhand store operators receiving secondhand merchandise for sale on behalf of some person must collect sales tax on all merchandise that they sell.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:03:40 Repealed

Signs.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 7 SDR 80, effective February 22, 1981.

ARSD 64:06:03:41 Vending machines

An operator of vending machines must obtain a sales tax license to engage in the business of selling tangible personal property or any product transferred electronically at retail and must pay the sales tax rate on gross receipts from the operation of such machines. Vending machine owners may determine the average equivalent sales by dividing their total receipts by the percentage of the current tax rate. One license is sufficient for all the machines of one operator.

If the South Dakota sales tax has not been paid to a licensed retailer on the purchase of a vending machine, use tax must be paid on the cost of machines originally purchased for use in South Dakota and on the fair market value of machines not originally purchased for use in this state, but thereafter brought into the state.

Declaratory Ruling: Vending machine owners need not pay sales tax on total receipts, but may determine the average equivalent sales by dividing their total receipts by 1.03. (Opinion issued while sales tax was three percent.) Secretary of Revenue Declaratory Ruling No. 77-17.

History

Source: SL 1975, ch 16, § 1; 7 SDR 80, effective February 22, 1981; 11 SDR 1, effective July 19, 1984; 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 16 SDR 76, effective November 1, 1989; 17 SDR 4, effective July 18, 1990; 21 SDR 219, effective July 1, 1995; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-46-2, 10-46-2.2.

ARSD 64:06:03:41.01 Municipal sales tax rate on vending machines

The highest rate of the municipal sales and gross receipts tax applies to all gross receipts of vending machines which sell multiple items which are taxed at different rates unless the vendor maintains records and inventories documenting actual sales by type of item. The municipal sales and gross receipts taxes are in addition to the state sales tax.

History

Source: 17 SDR 4, effective July 18, 1990; 19 SDR 42, effective September 29, 1992; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002.
General Authority: SDCL 10-45-47.1, 10-52-4, 10-52A-7(3).
Law Implemented: SDCL 10-45-2, 10-52-2, 10-52-8, 10-52A-2.

ARSD 64:06:03:42 Repealed

Water.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 5 SDR 60, effective January 25, 1979.

ARSD 64:06:03:43 Water and gravel haulers

Operators of gravel pits are retailers of gravel subject to tax and the haulers of water, except bulk water for domestic use, are engaged in making taxable sales. When customers take delivery of gravel at the pit or water at the source of supply, the charge is subject to tax. If a customer employs a trucker who is a licensed carrier for hire to haul gravel or water, the seller shall report the tax on the charge for the gravel or water.

If operators of gravel pits or sellers of water deliver with their own truck or employ someone to deliver for them to a place designated by the buyer, the entire charge, including cost of delivery, is subject to sales tax.

If the operator or buyer uses the gravel in making a realty improvement, the gravel is subject to the state sales or use tax upon the greater of the purchase price or the fair market value even if the gravel is furnished by an exempt entity.

History

Source: SL 1975, ch 16, § 1; 8 SDR 81, effective January 10, 1982; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1, 10-46-35.1.
Law Implemented: SDCL 10-45-2, 10-45-19.3, 10-46-5.

ARSD 64:06:03:44 Automotive wholesalers and jobbers -- Retail sales

Wholesalers and jobbers of automotive supplies are liable for sales tax on their receipts from sales of auto shop equipment, welding shop equipment, wash rack supplies, hand tools, grinding compounds, sandpaper, wiping rags, brushes, soap, paint remover, tape, and other material and equipment which is not resold by a garage, service station, or body shop or which is consumed by them in rendering their service.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:03:45 Automotive wholesalers and jobbers -- Wholesale sales

Wholesalers and jobbers selling automotive parts, paints, lacquers, greases, lubricants, tire patches, cement, and items which become part of a motor vehicle to service stations, garages, or body shops are making wholesale sales, exempt from the sales tax. Such items are considered purchases for resale by the service station, garage, or body shop.

History

Source: SL 1975, ch 16, § 1; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2.

ARSD 64:06:03:46 Wholesale houses

Sales of tangible personal property or any product transferred electronically for use and consumption by the purchaser are sales at retail and such sales are taxable. Quantity or price of the property sold is immaterial. A transaction is not considered to be wholesale, unless the sale is strictly for the purpose of resale. The seller must obtain an exemption certificate showing the buyer's state tax permit number. If a purchaser from a jobber or wholesale house does not have a sales tax permit, except manufacturers or processors, the sale is presumed to be a retail transaction and taxable.

History

Source: SL 1975, ch 16, § 1; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-45-2.4, 10-46-2, 10-46-2.2, 10-46-4.

ARSD 64:06:03:47 Repealed

Tangible personal property incidentally used or consumed by purchaser.** Repealed.

History

Source: SL 1975, ch 16, § 1; repealed, 11 SDR 1, effective July 19, 1984.

ARSD 64:06:03:48 Mounted agricultural equipment

Any equipment such as a power feed box, mixer, manure spreaders, stack mover, grinder, and fertilizer spreader, if mounted or affixed to a motor vehicle, machine or other piece of agricultural equipment which is licensed, registered or taxed pursuant to SDCL chapter 32-5, is considered a farm machine if used exclusively for agricultural purposes.

A truck box and hoist is not an attachment.

History

Source: 2 SDR 2, effective July 17, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 32 SDR 58, adopted October 5, 2005, effective January 1, 2006; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(3), 10-46E-11(3).
Law Implemented: SDCL 10-45-3.4, 10-46E-8.

ARSD 64:06:03:49 Pesticides and fertilizer

In addition to other statutory requirements to qualify as a fertilizer or a pesticide, which includes herbicides, rodenticides, fungicides, fumigants, and insecticides, a material must be registered with and approved by the Department of Agriculture and Natural Resources under the provisions of SDCL chapter 38-19, 38-20A, or 39-14.

History

Source: 2 SDR 2, effective July 17, 1975; 5 SDR 60, effective January 25, 1979; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 18 SDR 3, effective July 14, 1991; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; 32 SDR 225, effective July 3, 2006; 33 SDR 226, effective June 27, 2007; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-16, 10-45-16.1, 10-46-17.5.

ARSD 64:06:03:50 Repealed

Drugs, articles, medicines, medical supplies, medical appliances, artificial teeth, and prosthetic devices.** Repealed.

History

Source: 2 SDR 2, effective July 17, 1975; 9 SDR 28, effective September 5, 1982; 11 SDR 1, effective July 19, 1984; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; repealed, 29 SDR 177, effective July 2, 2003.

ARSD 64:06:03:51 Repealed

Coupons.** Repealed.

History

Source: 2 SDR 2, effective July 17, 1975; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 28 SDR 178, effective July 1, 2002; repealed, 33 SDR 226, effective June 27, 2007.

ARSD 64:06:03:52 Restaurant supplies

Restaurants where the public is invited to eat on the premises or to purchase prepared food and carry it out for consumption elsewhere are consumers of items such as paper napkins, drinking straws, and plastic tableware furnished to patrons. Retailers selling items of this nature to restaurants and similar establishments are subject to sales tax on the gross receipts from the sale of such items.

Containers for food or beverages such as paper cups, drinking glass covers, disposable food trays, wrappers, and plastic bowls which hold tangible personal property whose sales are subject to sales tax are considered a part of the taxable sale. Persons selling these containers to retailers are not liable for sales tax on these items.

History

Source: 7 SDR 80, effective February 22, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 58, effective October 19, 1988; 16 SDR 76, effective November 1, 1989; 21 SDR 219, effective July 1, 1995.
General Authority: SDCL 10-45-47.1.
Law Implemented: SDCL 10-45-2, 10-45-14.5.

ARSD 64:06:03:53 Off-road vehicles

Off-road vehicles are vehicles designed primarily to be operated on land other than a highway and include all-terrain vehicles, dune buggies, and any vehicle whose manufacturer's statement of origin (MSO) or manufacturer's certificate of origin (MCO) states that the vehicle is not for highway use. Although off-road vehicles are required to be titled by SDCL 32-20-12, receipts from sales of these vehicles are subject to sales tax rather than the motor vehicle excise tax.

History

Source: 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 25 SDR 167, effective July 1, 1999.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-3, 32-5B-2, 32-20-12.

ARSD 64:06:03:54 Repealed

Nutritional supplements.** Repealed.

History

Source: 12 SDR 111, effective January 12, 1986; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 21 SDR 219, effective July 1, 1995; 29 SDR 177, effective July 2, 2003; repealed, 31 SDR 214, effective July 6, 2005.

ARSD 64:06:03:55 Newspapers subject to sales tax and use tax

Gross receipts from the business of selling newspapers is subject to sales tax. A business which provides newspapers at no charge is deemed to be a user and consumer of the newspapers and is liable for use tax based upon the total cost of the newspapers. The total cost of a newspaper is the manufacturing cost of producing the newspaper after the camera-ready stage.

Newspaper print used in the printing and publishing of newspapers is exempt from use tax. To qualify for the exemption, the publication must fall within the definition of a newspaper set forth in subdivision 64:06:03:00(6).

History

Source: 25 SDR 167, effective July 1, 1999.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2, 10-46-2, 10-46-9.

ARSD 64:06:03:56 Maintenance items are not replacement parts -- Definition of maintenance items

Maintenance items are not exempt as replacement parts pursuant to SDCL 10-45-20.6 and 10-46-9.6. Maintenance items include oils, filters, antifreeze, windshield wiper fluid, and other fluids.

History

Source: 28 SDR 69, effective November 21, 2001; 32 SDR 58, adopted October 5, 2005, effective January 1, 2006; 32 SDR 225, effective July 3, 2006.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-20.6, 10-46-9.6.

ARSD 64:06:03:57 Drugs -- Definition

The term, drug, as used in SDCL 10-45-14.10 and 10-46-15.5 means a compound, substance, or preparation, and any component of a compound, substance, or preparation, other than food and food ingredients, dietary supplements, or alcoholic beverages that are:

(1) Defined as a drug as set forth in SDCL 34-20B-2(1);

(2) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; or

(3) Intended to affect the structure or any function of the body.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3), 10-45-14.10, 10-46-15.5.
Law Implemented: SDCL 10-45-14.10, 10-46-15.5.

ARSD 64:06:03:58 Durable medical equipment -- Definition

The term, durable medical equipment, as used in SDCL 10-45-14.11 and 10-46-15.6, means equipment including repair and replacement parts for same, but does not include mobility enhancing equipment, which:

(1) Can withstand repeated use;

(2) Is primarily and customarily used to serve a medical purpose;

(3) Generally is not useful to a person in the absence of illness or injury; and

(4) Is not worn in or on the body.

Durable medical equipment does not include any repair and replacement part which is for single patient use only.

Examples: Bath and shower chairs, commode chair, blood pressure gauges, feeding pumps, hospital beds. Durable medical equipment does not include exercise equipment or hot tubs.

History

Source: 29 SDR 177, effective July 2, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-45-14.11, 10-46-15.6.
Law Implemented: SDCL 10-45-14.11, 10-46-15.6.

ARSD 64:06:03:59 Mobility enhancing equipment -- Definition

The term, mobility enhancing equipment, as used in SDCL 10-45-14.11 and 10-46-15.6, means equipment including repair and replacement parts to same, but does not include durable medical equipment, which:

(1) Is primarily and customarily used to provide or increase the ability to move from one place to another and which is appropriate for use either in a home or a motor vehicle;

(2) Is not generally used by persons with normal mobility; and

(3) Does not include any motor vehicle or equipment on a motor vehicle normally provided by a motor vehicle manufacturer.

Examples: Canes, crutches, motorized carts, stair lifts, walkers, wheelchairs, lift and controls specifically added to motor vehicles.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1(3), 10-45-14.11, 10-46-15.6.
Law Implemented: SDCL 10-45-14.11, 10-46-15.6.

ARSD 64:06:03:60 Prosthetic device -- Definition

The term, prosthetic device, as used in SDCL 10-45-14.11 and 10-46-15.6, means a replacement, corrective, or supportive device, including repair and replacement parts for same, worn on or in the body to:

(1) Artificially replace a missing portion of the body;

(2) Prevent or correct physical deformity or malfunction; or

(3) Support a weak or deformed portion of the body.

Examples: Corrective eyeglasses, contact lenses, hearing aids, dental prosthesis, artificial arms and legs, braces, heart valves, pacemakers, and artificial eyes.

History

Source: 29 SDR 177, effective July 2, 2003.
General Authority: SDCL 10-45-47.1, 10-45-14.11, 10-46-15.6.
Law Implemented: SDCL 10-45-14.11, 10-46-15.6.

ARSD 64:06:03:61 Prescriptions -- Definition

The term, prescription, as used in SDCL chapters 10-45 and 10-46 means an order, formula, or recipe issued in any form of oral, written, electronic, or other means of transmission by a physician, chiropractor, optometrist, dentist, podiatrist, or audiologist.

History

Source: 30 SDR 40, effective September 29, 2003.
General Authority: SDCL 10-45-47.1(3).
Law Implemented: SDCL 10-45-14.10, 10-45-14.11, 10-45-14.12, 10-46-15.5, 10-46-15.6, 10-46-15.7.

ARSD 64:06:03:62 Medical device -- Component, part, or accessory

A medical device as defined in SDCL 10-45-14.12 and 10-46-15.7 includes a component, part, or accessory to mobility enhancing equipment, durable medical equipment, a prosthetic device or another medical device.

Example: Hemodialysis tubing, oxygen supply tubing, perfusion packs and x-ray film are components, parts or accessories of mobility enhancing equipment, durable medical equipment, or prosthetic devices and are exempt from sales and use tax.

History

Source: 30 SDR 40, effective September 29, 2003; 35 SDR 48, effective September 8, 2008.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-14.12, 10-46-15.7.

ARSD 64:06:03:63 Permanent foundation -- Definition

For purposes of determining whether a sectional home is subject to the provisions of SDCL 10-45-2.1 and 10-46-5.1, a permanent foundation is a continuous perimeter weight bearing foundation supporting a sectional home and engineered to resist the imposition of external forces such as rain, wind, and snow. The perimeter foundation walls shall be supported by footings placed below the normal frost line. The sectional home shall be attached and physically secured to the foundation.

History

Source: 30 SDR 211, effective July 1, 2004; 31 SDR 214, effective July 6, 2005.
General Authority: SDCL 10-45-47.1(3), 10-46-35.1(3).
Law Implemented: SDCL 10-45-2.1, 10-46-5.1.