2006 Delaware Code - CHAPTER 29 — RETAIL AND WHOLESALE MERCHANTS\' LICENSE REQUIREMENTS AND TAXES

§ 2901. Definitions.

As used in this chapter:

(1) "Certified takeoff weight" means the maximum weight contained in the type certificate or airworthiness certificate.

(2) "Exemption certificates," for purposes of this chapter, are documents created by regulations adopted or to be adopted by the Director of Revenue which are provided to a wholesaler by a purchaser to document a wholesale sale where the property is immediately taken outside of Delaware and the sale thus does not result in taxable gross receipts.

(3) "Goods" includes produce, merchandise, goods, wares, items, products, crops, livestock, animals, metals, gems or any tangible personal property of whatever description, whether new or used, and includes alcoholic beverages of every nature.

(4) "Gross receipts":

a. In the case of a retailer, "gross receipts" includes total consideration received for all goods sold or services rendered within this State, but shall not include tobacco products taxes or motor fuel taxes paid or payable to the State under Part IV of this title or gasoline and special fuel taxes paid or payable to the federal government under Internal Revenue Code § 4041 [26 U.S.C. § 4041| or § 4081 ›26 U.S.C. § 4081]; or receipts derived from the sale of petroleum products provided such products were sold to the retailer by a person who is licensed under this chapter and such sale is described in the definition of "gross receipts" with regard to such person.

b. In the case of a wholesaler, "gross receipts" includes total consideration received from sales of tangible personal property physically delivered within this State to the purchaser or the purchaser's agent, but shall not include: (i) Delivery to the United States mail or to a common or contract carrier for shipment to a place outside this State; (ii) tobacco products taxes or motor fuel taxes paid or payable to the State under Part IV of this title or gasoline and special fuel taxes paid or payable to the federal government under Internal Revenue Code § 4041 [26 U.S.C. § 4041| or § 4081 ›26 U.S.C. § 4081]; (iii) consideration for the sale of alcoholic liquor subject to tax under § 581 of Title 4; (iv) receipts derived from the sale of any form of combustible petroleum product for heating of ambient space or cooking of foodstuffs which is sold for ultimate consumption; (v) receipts derived from the sale of materiel or equipment other than petroleum products to the State (not including local jurisdictions or school districts) through the system of central contracting managed by the Office of Management and Budget pursuant to the provisions of § 8806(b)(1) of Title 29; (vi) delivery to the purchaser where the purchaser's vehicle or vessel is not headquartered or dispatched from within Delaware, the property is immediately taken outside of Delaware and the purchaser provides the wholesaler with an exemption certificate documenting the sale in accordance with regulations adopted or to be adopted by the Director of Revenue; (vii) receipts derived from printing contracts awarded by the Office of Management and Budget, Government Support Services; or (viii) receipts received by a non-U.S. person from a person commercially domiciled in Delaware that is related within the meaning of § 2010(10) of this title (A) for the sale of active ingredient or formulated active ingredient which is formulated or packed into a finished ethical pharmaceutical product within the State by a Delaware commercially domiciled entity related within the meaning of § 2010(10) of this title, or (B) for the sale of finished ethical pharmaceutical product which has been formulated or packed into a finished ethical pharmaceutical product within the State by a commercially domiciled entity related within the meaning of § 2010(10) of this title.

(5) "Person" includes an individual, partnership, firm, cooperative, corporation or any association of persons acting individually or as a unit.

(6) "Petroleum product" means crude oil, or any portion thereof, that is liquid at 70 Fahrenheit and at standard atmospheric pressures, and includes motor fuel, gasohol, other alcohol blended fuels, diesel fuel, aviation fuel, jet fuel, heating oil, motor oil and other petroleum based lubricants.

(7) For purposes of this chapter, the term "physically delivered within this State" includes delivery to the United States mail or to a common or contract carrier for shipment to a place within this State irrespective of F.O.B. or other terms of payment for delivery.

(8) "Retailer," for purposes of this chapter, except as provided in the definition of "wholesaler," includes every person engaged as owner or agent in the business of selling or exchanging goods for cash or barter or any consideration on the assumption that the purchaser of such goods has acquired the same for ultimate consumption or use and not resale and, where engaged in the foregoing business, includes automatic merchandising machine operators regardless of the product dispensed or vended, retail plant nurseries and florists, hucksters, peddlers, trading stamp redemption stores and catalog stores (except such stores described in subdivision (10)a.6. of this section) and branch stores.

"Retailer," for purposes of this chapter, shall not include, however, an individual under the age of 18 who engages in: (a) The delivery or distribution of newspapers or shopping news (not including delivery or distribution to any point for subsequent delivery or distribution); or (b) the sale of newspapers or magazines to ultimate consumers, under an arrangement under which the newspapers or magazines are sold by the individual at a fixed price, the individuals' compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to the individual, whether or not the individual is guaranteed a minimum amount of compensation for such service, or is entitled to be credited with the unsold newspapers or magazines turned back.

(9) "Transient retailer," for purposes of this chapter, includes any retailer who for 10 days or less during any year locates within the State without any intention of becoming a permanent retailer.

(10)a. "Wholesaler," for purposes of this chapter, includes:

1. Every person engaged, as owner or agent, in the business of selling to or exchanging with another person goods for cash or barter or any consideration for the purpose of resale by the person acquiring the goods sold or exchanged, and includes without limitation goods sold or exchanged through outlets, warehouses and distribution depots of persons whose principal place of business is located inside or outside this State and also includes the sale of machinery, supplies or materials which are to be directly consumed or used by the purchaser in the conduct of any business or activity, which business or activity is subject to the tax imposed by this part; provided, nevertheless, that sales to the United States or any agency or instrumentality thereof, or sales to this State, or any agency or political subdivision thereof, shall be deemed to be sales at wholesale;

2. Every person engaged in the processing of food or foodstuffs, which food or foodstuffs are to be resold by the person acquiring the food or foodstuffs from the person engaged in the processing. For purposes of this chapter, every person engaged in the bakery, poultry processing or cannery business shall be considered engaged in the processing of food or foodstuffs and a wholesaler;

3. Persons engaged in the business of buying, selling or shipping of commercial feeds;

4. Persons engaged in the business of selling any form of combustible fuel for heating or cooking, regardless of whether purchased for resale or ultimate consumption;

5. Persons other than owners or operators of nurseries or farms engaged in the business of operating a place where trees, shrubs, plants, flowers and the like are purchased from another person for cash or barter or any consideration for the purpose of resale by the person acquiring such goods; and

6. Every person engaged in the business of catalog or mail-order distribution of manufactured goods, when such persons do not own, operate or engage in any retail business within the State other than that described in this paragraph.

b. For purposes of this chapter, the word "wholesaler" shall not apply to a person who is licensed to catch, take, and sell eels, food fish or shellfish by the Delaware Department of Natural Resources and Environmental Control pursuant to Chapters 9 and 18 and Part II of Title 7 of the Delaware Code.

(11) "Transient nursery retailer," for purposes of this chapter, is any retailer of nursery products as defined in § 1301(27) of Title 3, that does not otherwise sell nursery products from a permanent structure within the State. It does not include any charitable organization as defined by § 501(c) of the Internal Revenue Code [26 U.S.C. § 501(c)]. (14 Del. Laws, c. 76, §§ 1, 2; 27 Del. Laws, c. 27; 27 Del. Laws, c. 30, §§ 1-3; Code 1915, §§ 198, 226A; 40 Del. Laws, c. 26, § 1; 40 Del. Laws, c. 30, § 1; Code 1935, § 173; 46 Del. Laws, c. 177; 47 Del. Laws, c. 385, § 2; 30 Del. C. 1953, § 2901; 49 Del. Laws, c. 343, § 1; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 188, §§ 15, 16; 59 Del. Laws, c. 126, § 1; 60 Del. Laws, c. 24, §§ 13-17; 60 Del. Laws, c. 273, § 1; 60 Del. Laws, c. 274, § 1; 60 Del. Laws, c. 505, § 1; 63 Del. Laws, c. 417, §§ 2, 3; 64 Del. Laws, c. 374, § 1; 65 Del. Laws, c. 389, § 1; 65 Del. Laws, c. 406, § 2; 65 Del. Laws, c. 478, §§ 1-3; 66 Del. Laws, c. 104, § 1; 67 Del. Laws, c. 258, § 2; 67 Del. Laws, c. 287, § 2; 67 Del. Laws, c. 290, §§ 1, 2, 4; 68 Del. Laws, c. 80, §§ 1, 2; 69 Del. Laws, c. 447, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 230, § 1; 71 Del. Laws, c. 39, §§ 1, 2; 71 Del. Laws, c. 211, § 6; 71 Del. Laws, c. 225, § 1; 71 Del. Laws, c. 440, § 1; 72 Del. Laws, c. 104, §§ 2, 4, 5; 72 Del. Laws, c. 464, § 1; 73 Del. Laws, c. 143, § 13; 74 Del. Laws, c. 3, § 2; 74 Del. Laws, c. 375, § 1; 75 Del. Laws, c. 88, §§ 16(6), 22(5).)

§ 2902. Wholesaler license requirements; license fee; additional fee on aggregate gross receipts; statements required.

(a) For the purposes of this section, "wholesaler" shall not include those wholesalers included in paragraphs 2. and 3. of § 2901(10)a. of this title.

(b) Any person desiring to engage in business in this State as a wholesaler shall first obtain a license from the Department of Finance and pay therefor a fee of $75 for each place of business. Such license shall be valid until January 1 at which time it may be renewed for a full year and every year thereafter; provided, that the wholesaler pays the fees required by subsection (c) of this section, makes application therefor and payment of $75 for each place of business.

(c)(1) In addition to the license fee required by subsection (b) of this section, every wholesaler shall also pay a license fee at the rate of 0.307% of the aggregate gross receipts attributable to sales of tangible personal property physically delivered within this State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts for the immediately preceding month. In computing the fee due on such aggregate gross receipts for each month, there shall be allowed a deduction of $80,000. For purposes of this subsection, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $750,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

(3) There shall be added to the tax provided in paragraph (1) of this subsection an additional tax of 0.192% on all taxable gross receipts determined under this section which are derived from the sale of petroleum products defined in § 2901(6) of this title.

(4) There shall be added to the taxes provided in paragraphs (1) and (3) of this subsection an additional tax as provided in § 9114 of Title 7.

(5) [Repealed.]

(6) The Director of Revenue is authorized to issue regulations providing for exemption certificates to be given by purchasers to wholesalers to document wholesale sales which, pursuant to § 2901(4)b.(vi) of this title, do not result in taxable gross receipts. A wholesaler is entitled to rely upon an exemption certificate valid on its face and in compliance with the regulations for purposes of computing the tax due under this section and shall not be liable for any tax attributable to sales covered by exemption certificates that are invalid. Any person providing an exemption certificate that is invalid shall, in addition to any prosecution under subchapter V of Chapter 5 of this title, be liable for the tax due (calculated without reference to the monthly exclusion in subsection (c)(1) of this section), plus interest and a penalty under § 535(a) of this title equal to 75% of the underpayment of tax attributable to sales covered by the invalid exemption certificates. (14 Del. Laws, c. 76, §§ 1, 2; 27 Del. Laws, c. 27; Code 1915, §§ 198, 226A; 40 Del. Laws, c. 26, § 1; 40 Del. Laws, c. 30, § 1; Code 1935, § 173; 41 Del. Laws, c. 13, § 1; 30 Del. C. 1953, § 2902; 49 Del. Laws, c. 343, § 2; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 741, § 14; 60 Del. Laws, c. 21, §§ 6, 7; 60 Del. Laws, c. 25, §§ 1, 2; 61 Del. Laws, c. 117, § 4; 63 Del. Laws, c. 314, § 4; 64 Del. Laws, c. 374, § 2; 65 Del. Laws, c. 184, § 3; 65 Del. Laws, c. 402, §§ 7, 8; 66 Del. Laws, c. 381, § 8; 67 Del. Laws, c. 261, § 11; 67 Del. Laws, c. 290, § 3; 67 Del. Laws, c. 326, § 3; 68 Del. Laws, c. 80, § 6; 69 Del. Laws, c. 289, § 6; 70 Del. Laws, c. 484, §§ 6, 12; 70 Del. Laws, c. 489, §§ 9, 10; 71 Del. Laws, c. 39, § 3; 71 Del. Laws, c. 351, §§ 4, 14, 21; 75 Del. Laws, c. 199, §§ 6, 11, 16, 25.)

§ 2903. Food processor license requirements; license fee; additional fee on aggregate gross receipts; statements required.

(a) Every person described in paragraph (10)a.2. of § 2901 of this title engaged in the business of food processor shall be exempt from the provisions of § 2902 of this title and shall be subject to the provisions of this section.

(b) All persons defined in subsection (a) of this section desiring to engage in business in this State shall first obtain a license from the Department of Finance and pay therefor a fee of $75 for each place of business. Such license shall be valid until January 1 at which time it may be renewed for a full year and every year thereafter; provided, that the food processor pays the fees required by subsection (c) of this section, makes application therefor and payment of $75 for each place of business.

(c)(1) In addition to the license fee required by subsection (b) of this section, every food processor shall also pay a license fee at the rate of 0.154% of the aggregate gross receipts attributable to all goods sold by the food processor within this State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts for the immediately preceding month. In computing the fee due on such aggregate gross receipts for each month, there shall be allowed a deduction of $80,000. For purposes of this subsection all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $1,500,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

(3) [Repealed.] (14 Del. Laws, c. 76, §§ 1, 2; Code 1915, §§ 198, 226A; 40 Del. Laws, c. 26, § 1; 40 Del. Laws, c. 30, § 1; Code 1935, § 173; 30 Del. C. 1953, § 2903; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 741, § 14; 60 Del. Laws, c. 21, §§ 8, 9; 60 Del. Laws, c. 23, §§ 1, 2; 61 Del. Laws, c. 117, § 5; 63 Del. Laws, c. 314, § 5; 65 Del. Laws, c. 392, §§ 6, 7; 65 Del. Laws, c. 402, §§ 9, 10; 66 Del. Laws, c. 381, § 2; 67 Del. Laws, c. 261, § 11; 68 Del. Laws, c. 80, §§ 7, 14; 69 Del. Laws, c. 289, §§ 1, 7; 70 Del. Laws, c. 484, § 3; 70 Del. Laws, c. 489, §§ 11, 12; 71 Del. Laws, c. 314, § 5; 71 Del. Laws, c. 351, §§ 5, 15, 22; 75 Del. Laws, c. 199, §§ 3, 17, 26.)

§ 2904. Commercial feed dealer license requirements; license fee; additional fee on aggregate gross receipts; statements required.

(a) Every person described in subdivision (10)a.3. of § 2901 of this title engaged in the business of buying, selling and shipping commercial feeds shall be exempt from § 2902 of this chapter and shall be subject to this section.

(b) All persons defined in subsection (a) of this section desiring to engage in business in this State shall first obtain a license from the Department of Finance and pay therefor a fee of $75 for each place of business. Such license shall be valid until January 1 at which time it may be renewed for a full year and every year thereafter; provided, that the commercial feed dealer pays the fees required by subsection (c) of this section, makes application therefor and makes payment of $75 for each place of business.

(c)(1) In addition to the license fee required by subsection (b) of this section, every commercial feed dealer shall also pay a license fee at the rate of 0.077% percent of the aggregate gross receipts attributable to all goods delivered by the commercial dealer within this State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts for the immediately preceding month. In computing the fee due on such aggregate gross receipts for each month, there shall be allowed a deduction of $80,000. For purposes of this subsection all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $3,000,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

(3) [Repealed.] (14 Del. Laws, c. 76, §§ 1, 2; Code 1915, §§ 198, 226A; 40 Del. Laws, c. 26, § 1; 40 Del. Laws, c. 30, § 1; Code 1935, § 173; 30 Del. C. 1953, § 2904; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 741, § 14; 60 Del. Laws, c. 21, §§ 10, 11; 60 Del. Laws, c. 23, §§ 3, 4; 61 Del. Laws, c. 117, § 6; 63 Del. Laws, c. 314, § 6; 65 Del. Laws, c. 392, §§ 8, 9; 65 Del. Laws, c. 402, §§ 11, 12; 65 Del. Laws, c. 406, § 1; 66 Del. Laws, c. 381, § 3; 67 Del. Laws, c. 261, § 11; 68 Del. Laws, c. 80, §§ 8, 14; 69 Del. Laws, c. 289, §§ 1, 8; 70 Del. Laws, c. 484, § 7; 70 Del. Laws, c. 489, §§ 13, 14; 71 Del. Laws, c. 351, §§ 6, 16, 23; 75 Del. Laws, c. 199, §§ 7, 18, 27.)

§ 2905. Retailer license requirements; license fee; additional fee on aggregate purchase price; statements required; transient retailer license requirements; license fee.

(a) Any person desiring to engage in business in this State as a retailer shall obtain a license upon making application to the Division of Revenue and paying a fee of $75, plus a fee of $25 for each separate branch or business location. If the monthly payments thereafter are made in accordance with subsection (b) of this section, such license shall be valid until January 1 at which time it may be renewed for a full year and every year thereafter; provided, that the retailer makes application therefor and payment of $75 plus $25 for each separate branch or business location.

(b)(1) In addition to the license fee required by subsection (a) of this section, every retailer shall pay a license fee at the rate of 0.576% of the aggregate gross receipts attributable to all goods sold or services rendered by the retailer within the State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts for the immediately preceding month. In computing the fee due on such aggregate gross receipts for each month, there shall be allowed a deduction of $80,000. For purposes of this subsection, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $500,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

(3) [Repealed.]

(c)-(e) [Repealed.]

(f) Any person desiring to engage in business in this State as a transient retailer shall obtain a license upon making application to the Division of Revenue and paying a fee of $25.

(g) In addition to the license fee required by subsection (f) of this section, every transient retailer shall pay a license fee at the rate of 0.576% of the aggregate gross receipts attributable to all goods sold or services rendered by the transient retailer within the State which exceed $3,000. Unless a transient retailer exceeds $3,000 of aggregate gross receipts attributable to all goods sold or services rendered by the transient retailer within the State during any year, said transient retailer shall not be required to file any return or certified statement with the Department of Finance; provided, however, that every transient retailer who exceeds $3,000 of aggregate gross receipts attributable to all goods sold or services rendered by the transient retailer within the State during any year shall file a return accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(h) There shall be added to the tax provided in subsection (b) of this section an additional tax as provided in § 9114 of Title 7.

(i)(1) In lieu of the license fee required by subsection (f) of this section, any person desiring to engage in business in this State as a transient nursery retailer shall obtain a license upon making application to the Division of Revenue and paying a fee of $75 for each location at which the applicant seeks to do business. Such license shall be valid for 30 consecutive days.

(2) Any person desiring to engage in business in this State as a transient nursery retailer must first present an original, or copy of, a valid nursery industry license obtained from the Department of Agriculture.

(3) Prior to issuance of a license, the Division of Revenue shall also ensure that the applicant provides proof that the applicant has obtained all other necessary State, county and municipal licenses, permits, and waivers regarding the sale of their products, and operation at a particular location. The application must specify the specific location of the transient activity.

(4) If the license is not posted by the transient nursery retailer at the site of business, then the Division of Revenue shall order such retailer to cease and desist all retail activity. (Code 1915, §§ 198A, 226A; 30 Del. Laws, c. 23; 40 Del. Laws, c. 30, § 1; Code 1935, § 174; 42 Del. Laws, c. 65; 44 Del. Laws, c. 6; 48 Del. Laws, c. 379; 30 Del. C. 1953, § 2905; 49 Del. Laws, c. 99; 49 Del. Laws, c. 343, § 3; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 188, § 33; 57 Del. Laws, c. 389, §§ 1, 6; 57 Del. Laws, c. 741, § 14; 60 Del. Laws, c. 21, §§ 12-14; 60 Del. Laws, c. 24, §§ 7-9; 60 Del. Laws, c. 505, §§ 2-4; 61 Del. Laws, c. 117, § 7; 61 Del. Laws, c. 184, § 1; 63 Del. Laws, c. 314, § 7; 65 Del. Laws, c. 390, § 1; 65 Del. Laws, c. 402, § 13; 66 Del. Laws, c. 381, § 4; 67 Del. Laws, c. 261, §§ 11, 12; 67 Del. Laws, c. 326, § 7; 68 Del. Laws, c. 80, § 9; 69 Del. Laws, c. 289, § 9; 70 Del. Laws, c. 142, § 6; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 484, §§ 8, 13; 70 Del. Laws, c. 489, §§ 15, 16; 71 Del. Laws, c. 351, §§ 7, 24; 74 Del. Laws, c. 375, § 2; 75 Del. Laws, c. 199, §§ 8, 12, 19, 28.)

§ 2906. Restaurant retailer license requirements; license fee; additional fee on aggregate gross receipts; statements required.

(a) Every person engaged in the business of operating a restaurant, snack bar, soda fountain, take-out food service, catering service, private eating or drinking club, or other eating establishment or service shall be exempt from the provisions of § 2905 of this title and shall be subject to the provisions of this section.

(b) All persons defined in subsection (a) of this section desiring to engage in business in this State shall obtain a license upon making application to the Division of Revenue and paying a fee of $75 plus $25 for each separate branch or location. If monthly payments thereafter are made in accordance with subsection (c) of this section, such license shall be valid until January 1 at which time it may be renewed for a full year and every year thereafter; provided, that the restaurant retailer makes application therefor and payment of $75 plus $25 for each separate branch or location.

(c)(1) In addition to the license fee required by subsection (b) of this section every restaurant retailer shall pay a license fee at the rate of 0.499% of the aggregate gross receipts attributable to all goods sold within the State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts of the immediately preceding month period. In computing the fee due on the aggregate gross receipts for any month, there shall be allowed a deduction of $80,000. For purposes of this subsection, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $500,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

(3) [Repealed.]

(d) Persons licensed as a retailer or grocery supermarket retailer pursuant to § 2905 or § 2908 of this title and who derive at least 90 percent of their sales of food suitable for human consumption from food that is not "immediately consumable," as that term is defined by § 2908(a) of this title, shall be exempt from this section, provided that the retailer or grocery supermarket retailer reports the gross receipts derived from activities otherwise subject to this chapter as retail or grocery supermarket retail sales, as the case may be. (Code 1915, §§ 198A, 226A; 30 Del. Laws, c. 23; 40 Del. Laws, c. 30, § 1; Code 1935, § 174; 42 Del. Laws, c. 65; 30 Del. C. 1953, § 2906; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 188, §§ 33A, 42; 57 Del. Laws, c. 741, § 14; 60 Del. Laws, c. 21, §§ 15, 16, 19; 60 Del. Laws, c. 24, §§ 10, 11, 19; 61 Del. Laws, c. 117, § 8; 63 Del. Laws, c. 314, § 8; 65 Del. Laws, c. 390, § 2; 65 Del. Laws, c. 402, § 14; 66 Del. Laws, c. 381, § 5; 67 Del. Laws, c. 261, §§ 11, 12; 68 Del. Laws, c. 80, §§ 10, 14; 69 Del. Laws, c. 289, §§ 1, 10; 70 Del. Laws, c. 484, § 9; 70 Del. Laws, c. 489, §§ 17, 18; 71 Del. Laws, c. 351, §§ 8, 25; 72 Del. Laws, c. 104, § 3; 75 Del. Laws, c. 199, §§ 9, 20, 29.)

§ 2907. Farm machinery retailer license requirements; license fee; additional fee on aggregate gross receipts; statements required.

(a) To the extent that any person is engaged in the business of selling farm machinery, supplies or materials which are to be directly consumed or used by the purchaser in the conduct of any business, such person shall be exempt from § 2905 of this title and shall be subject to the provisions of this section. All other sales by farm machinery retailers shall be governed by § 2905 of this title.

(b) All persons defined in subsection (a) of this section desiring to engage in business in this State shall first obtain a license from the Department of Finance and pay therefor a fee of $75 for each place of business. Such license shall be valid until January 1 at which time it may be renewed for a full year and every year thereafter; provided, that the farm machinery retailer pays the fees required by subsection (c) of this section, makes application therefor and payment of $75 for each place of business.

(c)(1) In addition to the license fee required by subsection (b) of this section, every farm machinery retailer shall also pay a license fee at the rate of 0.077% of the aggregate gross receipts attributable to all goods sold by the farm machinery retailer within this State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts for the immediately preceding month. In computing the fee due on such aggregate gross receipts for each month, there shall be allowed a deduction of $80,000. For purposes of this subsection all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 monthly deduction from the aggregate gross receipts of the entire enterprise. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $3,000,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due.

(3) [Repealed.] (30 Del. C. 1953, § 2907; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 741, § 14; 60 Del. Laws, c. 21, §§ 17, 18; 60 Del. Laws, c. 23, §§ 5, 6; 61 Del. Laws, c. 117, § 9; 63 Del. Laws, c. 314, § 9; 65 Del. Laws, c. 392, §§ 4, 5; 65 Del. Laws, c. 402, §§ 15, 16; 66 Del. Laws, c. 381, § 6; 67 Del. Laws, c. 261, § 11; 68 Del. Laws, c. 80, §§ 11, 14; 69 Del. Laws, c. 289, §§ 1, 11; 70 Del. Laws, c. 484, § 2; 70 Del. Laws, c. 489, §§ 19, 20; 71 Del. Laws, c. 351, §§ 9, 17, 26; 75 Del. Laws, c. 199, §§ 2, 21, 31.)

§ 2908. Grocery supermarket retailers.

(a) Every person engaged in the business of operating a retail grocery supermarket shall be exempt from the provisions of § 2905 of this title and shall be subject to the provisions of this section with regard to the retail sales of such store. For purposes of this section, a grocery supermarket shall mean a retail store with an area of more than 6,000 square feet and whose primary business is selling food for human consumption, having on stock available for retail sale and purchase at least 12,000 different food stock units (SKU's) at least 90 percent of whose sales of food suitable for human consumption consists of food that is not immediately consumable. For purposes of this section, "not immediately consumable" shall be defined as any product purchased at the grocery store that is intended for consumption at home in which some preparation or cooking is necessary. Notwithstanding and in addition to this definition, the following products shall be considered not immediately consumable: frozen ice cream, frozen or refrigerated yogurt, all fresh fruits and vegetables, deli products sold by the pound or packaged on the shelf, cooked shrimp or other seafood sold by the pound, bottled or canned sodas including bottled waters, all snack foods such as, but not limited to, potato chips, cookies and packaged candies, refrigerated dairy products, bakery goods, dry foods sold in bulk by the pound and any other food item that is generally consumed at home.

(b) All persons defined in subsection (a) of this section desiring to engage in business in this State shall obtain a license upon making application to the Division of Revenue and paying a fee of $75 plus $25 for each separate branch or location. If monthly payments thereafter are made in accordance with subsection (c) of this section, such license shall be valid through December 31, at which time it may be renewed for a full year and every year thereafter; provided, that the grocery store retailer makes application therefor and payment of $75 plus $25 for each separate branch or location.

(c)(1) In addition to the license fee required by subsection (b) of this section, every grocery store retailer shall pay a license fee at the rate of 0.307% of the first $2 million per month and 0.576% thereafter of the aggregate gross receipts attributed to all goods sold within the State, which fee shall be payable monthly on or before the 20th day of each month with respect to the aggregate gross receipts of the immediately preceding month. In computing the fee due on the aggregate gross receipts for any month, there shall be allowed a deduction of $80,000. Solely for purposes of determining the rate of taxation and the monthly exclusion under this subsection, but not for determining the applicability of the definition of "grocery supermarket," all branches or entities comprising an enterprise with common ownership or common direction and control shall be considered as one. The monthly returns shall be accompanied by a certified statement on such forms as the Division of Revenue shall require in computing the fee due.

(2) Notwithstanding paragraph (1) of this subsection, if the taxable gross receipts prescribed therein during the lookback period as defined in § 2122 of this title do not exceed $750,000, the return and payment of the additional license fee imposed for such month shall be due on or before the last day of the 1st month following the close of the quarter. In the case of such return, in computing the fee due on such aggregate gross receipts for each quarter, there shall be allowed a deduction of $240,000. For purposes of this paragraph, all branches or entities comprising an enterprise with common ownership or common direction and control shall be treated as one, and shall be allowed only 1 quarterly deduction from the aggregate gross receipts of the entire enterprise. The quarterly return shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing this fee due. (70 Del. Laws, c. 484, § 15; 71 Del. Laws, c. 351, §§ 10, 11; 75 Del. Laws, c. 199, §§ 13, 22, 33.)

§ 2909. Exemptions.

(a)(1) This chapter shall not apply to the sale of unprocessed agricultural products, including nursery or floral products by:

a. The owner or operator of a farm or nursery which produced the products; provided, however, that no business described in this subparagraph shall be required to obtain a license under this chapter if its gross receipts from the sale of unprocessed agricultural products not produced on the taxpayer's farm or nursery do not exceed the amount excluded from tax under § 2905(b) or § 2902(b) of this title; or

b. The owner or operator of any enterprise whose principal business in this State is the purchase and resale, at wholesale, of unprocessed and unpackaged agricultural plant products; provided such products are purchased from a person described in this paragraph and further provided said purchase occurs within this State.

(2) This chapter shall not apply to the incidental sale by the owner or operator of a farm or nursery of processed agricultural products on the assumption that the purchaser of such products has acquired the same for consumption or use and not for resale. Growers of nursery products shall be treated under this chapter as retailers to the extent of sales at retail.

(b) This chapter shall not apply to any transaction subject to the motor vehicle dealer handling fee as set forth in § 3004 of this title.

(c) The tax imposed by § 2905(b) or § 2906(c) of this title shall not apply to gross receipts from the retail sale for off premises consumption of alcoholic liquor, beer, cider or wine under license pursuant to Title 4.

(d) Section 2905 of this title shall not apply to goods which are delivered by the retailer outside this State, and for which the retailer can provide proof satisfactory to the State Tax Department that an out-of-state retail sales tax has been paid to such state with respect to said goods.

(e) Notwithstanding any provisions of this chapter to the contrary, no handicapped peddler who has reached the age of 62 years shall be required to pay any fee for a license pursuant to this chapter. For the purposes of this subsection, the term "peddler" shall include every person who sells, or offers to sell, at retail, any goods, wares or other commodities by travelling from place to place, on the street or through different parts of this State. The term "handicapped," as used in this subsection, includes, but is not limited to, the following diagnosis: Mental retardation, impairment of hearing or deafness, speech impairments, substantial loss of sight, loss of limb or limbs or paralysis in any substantial degree, which handicaps require special services or impair or impede other employment.

(f) This chapter shall not apply to casual sales by any individual artist or craftsperson who sells or offers for sale the craftperson's own handmade, painted or crafted art or craft objects and whose gross income from the sale of said objects is less than $1,000 per year.

(g) The provisions of § 2902 of this title shall not apply to any person who catches crabs for sale or who holds a crabbing license, or holds any other state occupational license which is required for a person to engage in commercial crabbing.

(h) [Repealed.]

(i) This chapter shall not apply to any person holding a license for the conduct of horse racing meetings or a license to conduct pari-mutuel or totalizator wagering or betting under Chapter 101 of Title 3 or Chapter 4 of Title 28, to the extent activities under this chapter are related to the conduct of horse racing meets.

(j) Sections 2905 and 2906 of this title shall not apply to non-profit organizations exempt from federal income tax under § 501(c) of the Internal Revenue Code of 1986 (26 U.S.C. § 501(c) as amended.

(k) This chapter shall not apply to the exchange between or among wholesalers of fungible goods when the goods received by such wholesaler are received by it for the purpose of resale. For purposes of this subsection, the term "fungible" shall refer to goods of which any unit is, by nature or usage of trade, the equivalent of any other like unit. This provision shall not be construed so as to exclude from tax under this chapter the sale, whether at retail or wholesale, of goods received for resale as a result of the exchange. The exemption provided in this section is not applicable to a sale occurring upon the delivery by 1 exchange partner directly to the customer of the other exchange partner and such delivery shall be treated as made to such customer directly by the other exchange partner and subject to tax, even though such other exchange partner may never have obtained physical possession of such fungible good.

(l) This chapter shall not apply to the sale of aircraft having a certified takeoff weight of 12,500 pounds or more. (30 Del. C. 1953, § 2908; 57 Del. Laws, c. 136, § 16; 57 Del. Laws, c. 188, §§ 17, 32, 47; 60 Del. Laws, c. 24, § 12; 60 Del. Laws, c. 637, § 1; 61 Del. Laws, c. 139, § 1; 61 Del. Laws, c. 312, § 1; 63 Del. Laws, c. 417, § 5; 65 Del. Laws, c. 184, § 1; 65 Del. Laws, c. 406, § 3; 67 Del. Laws, c. 287, § 1; 69 Del. Laws, c. 83, § 2; 70 Del. Laws, c. 142, § 9; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 230, §§ 2, 3; 70 Del. Laws, c. 484, § 14; 71 Del. Laws, c. 39, § 4; 71 Del. Laws, c. 211, § 7; 74 Del. Laws, c. 3, § 1; 75 Del. Laws, c. 171, § 3.)

§ 2910. Tire retailer license requirements; license fee; additional fee on new tires.

(a) In addition to any license required under § 2905 of this title, any person desiring to engage in business in this State as a retailer of tires for vehicles shall obtain a registration upon making application to the Division of Revenue at no additional cost.

(b) In addition to the registration required by subsection (a) of this section, every retailer of tires for vehicles shall pay a fee at the rate of $2.00 per tire sold at retail during any month. Such fee shall be due on the 20th of the following month. The monthly returns shall be accompanied by a certified statement on such forms as the Department of Finance shall require in computing the fee due. Each retailer of tires may list, as a separate line item on an invoice, the amount of the fees due under this subsection.

(c) The term "retailer" shall have the meaning ascribed to that term in § 2901(8) of this title. The term "tire" shall have the meaning ascribed to that term in § 6040 of Title 7. The term "vehicle" shall have the meaning ascribed to that term in § 101 of Title 21, except that such term shall not include farm tractors.

(d) The fees provided by this section shall be remitted to the Division of Revenue on forms issued by the Director of Revenue and subject to such regulations and requirements as shall be prescribed by the Director of Revenue. The Director of Revenue shall deposit the additional fee provided in this section to the credit of the special fund described in § 6041 of Title 7. The Division of Revenue shall enter into an agreement with the Department of Natural Resources and Environment Control authorizing the Division of Revenue to charge such fund an amount reasonably determined by the Division of Revenue to be the cost of administering the fees described in this section. (75 Del. Laws, c. 346, § 8.)