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CHAPTER 57-39.10
STATE-TRIBAL ALCOHOL, TOBACCO, AND ALCOHOLIC BEVERAGES GROSS RECEIPTS
TAX AGREEMENTS
57-39.10-01. Authority to enter state-tribal alcoholic beverages wholesale tax, tobacco
products wholesale tax, and alcoholic beverages gross receipts tax agreements.
1. The governor, in consultation with the tax commissioner, may enter separate
agreements on behalf of the state with the governing body of the Three Affiliated
Tribes of the Fort Berthold Reservation, Sisseton-Wahpeton Oyate of the Lake
Traverse Reservation, Standing Rock Sioux Tribe, Spirit Lake Tribe, and Turtle
Mountain Band of Chippewa Indians. Each agreement must comply with this chapter
relating to the collection, administration, enforcement, and allocation of the state
alcoholic beverages wholesale taxes under chapters 5-01, 5-02, and 5-03 for sales of
alcoholic beverages, including beer, wine, sparkling wine, and distilled spirits, for
delivery to licensed retailers or sale directly to consumers located within the exterior
boundaries of the Fort Berthold Reservation, that portion of the Lake Traverse
Reservation located in this state, the Spirit Lake Reservation, that portion of the
Standing Rock Reservation located in this state, or the Turtle Mountain Reservation.
The tax commissioner shall conduct a review of any proposed agreement under this
chapter to determine if its provisions can be administered and enforced.
2. The governor, in consultation with the tax commissioner, may enter separate
agreements on behalf of the state with the governing body of the Three Affiliated
Tribes of the Fort Berthold Reservation, Sisseton-Wahpeton Oyate of the Lake
Traverse Reservation, Standing Rock Sioux Tribe, Spirit Lake Tribe, and Turtle
Mountain Band of Chippewa Indians. Each agreement must comply with this chapter
relating to the collection, administration, enforcement, and allocation of the state
tobacco products wholesale taxes under chapter 57-36 for tobacco products sold by
licensed wholesalers for delivery to licensed retailers or sold by licensed retailers
directly to consumers within the exterior boundaries of the Fort Berthold Reservation,
that portion of the Lake Traverse Reservation located in this state, the Spirit Lake
Reservation, that portion of the Standing Rock Reservation located in this state, or the
Turtle Mountain Reservation. The tax commissioner shall conduct a review of any
proposed agreement under this chapter to determine if its provisions can be
administered and enforced.
3. The governor, in consultation with the tax commissioner, may enter separate
agreements on behalf of the state with the governing body of the Three Affiliated
Tribes of the Fort Berthold Reservation, Sisseton-Wahpeton Oyate of the Lake
Traverse Reservation, Standing Rock Sioux Tribe, Spirit Lake Tribe, and Turtle
Mountain Band of Chippewa Indians. Each agreement must comply with this chapter
relating to the collection, administration, enforcement, and allocation of the state
alcoholic beverages gross receipts tax under chapter 57-39.6, imposed and collected
within the exterior boundaries of the Fort Berthold Reservation, that portion of the Lake
Traverse Reservation located in this state, the Spirit Lake Reservation, that portion of
the Standing Rock Reservation located in this state, or the Turtle Mountain
Reservation. The tax commissioner shall conduct a review of any proposed agreement
under this chapter to determine if its provisions can be administered and enforced.
4. An agreement under this chapter must include the alcoholic beverages wholesale tax,
tobacco products wholesale tax, and the alcoholic beverages gross receipts tax.
57-39.10-02. Requirements for all state-tribal tax agreements.
Any agreement entered under this chapter must comply with this section.
1. The agreement must include:
a. A statement that the parties to the agreement are not forfeiting any legal rights to
apply each party's respective taxes by entering an agreement, except as
specifically set forth in the agreement;
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b.
2.
3.
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5.
6.
A statement recognizing the sovereign rights of the state and the tribe or tribes;
and
c. A statement that:
(1) The rights of each party must be determined by the terms of the agreement
with respect to the taxes subject to the agreement;
(2) Neither party may seek additional entitlement or seek to deny entitlement on
any federal ground, including federal pre-emption, whether statutorily
provided for or otherwise with respect to the taxes that are the subject of an
agreement;
(3) Both parties shall defend the agreement from attack by third parties;
(4) A taxpayer may not be required to pay both the state tax and the tribal tax
but shall pay only one tax to one government in an amount established by
the agreement; and
(5) The state and tribal government shall cooperate to collect only one tax and
share or refund the revenue as specified in the agreement.
Any tribally owned entity or other entity owned in whole or part by a tribal member,
whether chartered under state law or tribal law, and operating within the exterior
boundaries of a reservation, is subject to the state's tax or taxes and regulatory
requirements of the tax subject to an agreement.
The tax commissioner retains authority to collect, administer, and enforce the taxes
subject to an agreement under this chapter, including the authority to audit, assess,
refund, credit, or determine the exempt or nonexempt status of any transaction, for
taxes collected within the exterior boundaries of a reservation in this state in the
manner provided by the applicable state laws.
Any controversy or claim between the tribe or tribes and the state, arising out of or
relating to an agreement under this chapter, is subject to binding arbitration in
accordance with the processes and procedures provided in the agreement between
the tribe or tribes and the state. Any issues concerning the jurisdiction of the state to
impose a tax are expressly excluded from the scope of the arbitration.
An agreement under this chapter must give the tax commissioner, after consulting with
the governor, and a tribe or tribes the authority to terminate an agreement with or
without cause.
An agreement may begin no sooner than the first day of a calendar quarter which is at
least ninety days after the agreement is signed by both parties. The tribe or tribes and
the state must provide the initial population required by sections 57-39.10-03 and
57-39.10-04 no fewer than sixty days before the effective date of the agreement.
57-39.10-03. Alcoholic beverages wholesale tax agreement requirements.
The governor may enter an alcoholic beverages wholesale tax agreement with a tribe or
tribes if the agreement complies with section 57-39.10-02 and this section.
1. The taxes subject to an agreement under this section are the state's alcoholic
beverages wholesale taxes under chapters 5-01, 5-02, and 5-03, as may be amended
subsequently by the legislative assembly, for alcoholic beverages sold by licensed
wholesalers, domestic wineries, domestic distilleries, microbrew pubs, brewer taproom
licensees, and direct shippers, for delivery to licensed retailers or sale directly to
consumers located within the exterior boundaries of the Fort Berthold Reservation,
that portion of the Lake Traverse Reservation located in this state, the Spirit Lake
Reservation, that portion of the Standing Rock Reservation located in this state, or the
Turtle Mountain Reservation.
2. A tribe or tribes shall impose taxes equal to the state's alcoholic beverages wholesale
taxes on all sales of alcoholic beverages sold by licensed wholesalers, domestic
wineries, domestic distilleries, microbrew pubs, brewer taproom licensees, and direct
shippers, for delivery to all persons within the exterior boundaries of the reservation in
this state.
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3.
4.
5.
Chapters 5-01, 5-02, and 5-03, and title 81 of the North Dakota Administrative Code
govern the collection and administration of the taxes subject to an agreement under
this section.
The amount of tax revenue allocated to the tribe pursuant to an agreement under this
section must be equal to an amount determined by multiplying the enrolled
membership of the tribe by the state alcohol revenue per capita. The state alcohol
revenue per capita is the quarterly collections of the state's alcoholic beverages
wholesale taxes designated for deposit in the state general fund divided by the state's
total population as determined in the most recent actual or estimated census data
published by the United States census bureau.
Except as provided in subsection 6 of section 57-39.10-02, the enrolled membership of
the tribe must be certified to the state by September thirtieth of each year during the
term of the agreement. The enrolled membership of the tribe must consist of the
number of enrolled members of the tribe physically residing within the exterior
boundaries of the portion of the tribe's reservation located in this state. The enrolled
membership of the tribe must be based on the tribe's enrollment office records, the
bureau of Indian affairs enrollment records, or other records maintained by the tribe.
The previous year's certified enrollment number must be used if the tribe does not
issue a certification by September thirtieth, unless the tribe demonstrates the certified
enrollment number has increased or decreased. The manner in which the state and
tribe resolve issues arising under this subsection must be specified in the agreement.
57-39.10-04. Tobacco products wholesale tax agreement requirements.
The governor may enter a tobacco products wholesale tax agreement with a tribe or tribes if
the agreement complies with section 57-39.10-02 and this section.
1. The taxes subject to an agreement under this section are the state's tobacco products
wholesale taxes under chapter 57-36, as may be amended subsequently by the
legislative assembly, for tobacco products sold by licensed wholesalers for delivery to
licensed retailers or sold by licensed retailers directly to consumers within the exterior
boundaries of the Fort Berthold Reservation, that portion of the Lake Traverse
Reservation located in this state, the Spirit Lake Reservation, that portion of the
Standing Rock Reservation located in this state, or the Turtle Mountain Reservation.
2. A tribe or tribes shall impose taxes equal to the state's tobacco products wholesale
taxes on all tobacco products sold by licensed wholesalers for delivery to licensed
retailers or sold by licensed retailers directly to customers within the exterior
boundaries of the reservation in this state.
3. Chapters 57-36 and title 81 of the North Dakota Administrative Code govern the
administration of the taxes subject to an agreement under this section.
4. The amount of tax revenue allocated to the tribe pursuant to an agreement under this
section must be equal to an amount determined by multiplying the enrolled
membership of the tribe by the state tobacco revenue per capita. The state tobacco
revenue per capita is the quarterly collections of the state's tobacco products
wholesale taxes designated for deposit in the state general fund divided by the state's
total population as determined in the most recent actual or estimated census data
published by the United States census bureau.
5. Except as provided in subsection 6 of section 57-39.10-02, the enrolled membership of
the tribe must be certified to the state by September thirtieth of each year during the
term of the agreement. The enrolled membership of the tribe must consist of the
number of enrolled members of the tribe physically residing within the exterior
boundaries of the portion of the tribe's reservation located in this state. The enrolled
membership of the tribe must be based on the tribe's enrollment office records, the
bureau of Indian affairs enrollment records, or other records maintained by the tribe.
The previous year's certified enrollment number must be used if the tribe does not
issue a certification by September thirtieth, unless the tribe demonstrates the certified
enrollment number has increased or decreased. The manner in which the state and
tribe resolve issues arising under this subsection must be specified in the agreement.
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57-39.10-05. Alcoholic beverages gross receipts tax agreement requirements.
The governor may enter an alcoholic beverages gross receipts tax agreement with a tribe or
tribes if the agreement complies with the requirements of section 57-39.10-02 and this section.
1. The taxes subject to an agreement under this chapter are the state's alcoholic
beverages gross receipts tax under chapter 57-39.6, as may be amended
subsequently by the legislative assembly, for taxable transactions and activities
occurring exclusively within the exterior boundaries of the Fort Berthold Reservation,
that portion of the Lake Traverse Reservation located in this state, the Spirit Lake
Reservation, that portion of the Standing Rock Reservation located in this state, or the
Turtle Mountain Reservation.
2. A tribe or tribes shall impose a tax equal to the state's alcoholic beverages gross
receipts tax on all sales at retail of alcoholic beverages within the exterior boundaries
of the reservation in this state.
3. Chapters 57-39.2 and 57-39.6, and title 81 of the North Dakota Administrative Code
govern the administration of the taxes subject to an agreement under this section.
4. The governor and the tribe or tribes must agree the tribe or tribes may not impose any
direct or indirect tribal tax or fee on retailers, transactions, or activities subject to the
tax agreement. This subsection does not apply to tribal employment rights office fees.
5. The amount of tax revenue allocated to the tribe pursuant to an agreement under this
section must be equal to an amount determined by multiplying the enrolled
membership of the tribe by the state alcoholic beverages gross receipts tax revenue
per capita. The state alcoholic beverages gross receipts tax revenue per capita is the
quarterly collections of the state's alcoholic beverages gross receipts tax designated
for deposit in the state general fund divided by the state's total population as
determined in the most recent actual or estimated census data published by the United
States census bureau.
6. Except as provided in subsection 6 of section 57-39.10-02, the enrolled membership of
the tribe must be certified to the state by September thirtieth of each year during the
term of the agreement. The enrolled membership of the tribe must consist of the
number of enrolled members of the tribe physically residing within the exterior
boundaries of the portion of the tribe's reservation located in this state. The enrolled
membership of the tribe must be based on the tribe's enrollment office records, the
bureau of Indian affairs enrollment records, or other records maintained by the tribe.
The previous year's certified enrollment number must be used if the tribe does not
issue a certification by September thirtieth, unless the tribe demonstrates the certified
enrollment number has increased or decreased. The manner in which the state and
tribe resolve issues arising under this subsection must be specified in the agreement.
7. a. Notwithstanding any other provision of state law, the agreement must contain
provisions in which:
(1) Except as otherwise provided by law, the tax commissioner shall maintain
the confidentiality of tax information relating to and gathered under the terms
of an agreement as provided in section 57-39.2-23;
(2) The tribe or tribes may receive a list of retailers located within the exterior
boundaries of the reservation and the amount of tax collected from each
retailer during a reporting period; and
(3) The tribe or tribes agree to protect the confidentiality of tax information
received from the tax commissioner.
b. The agreement must specify the processes or procedures necessary to
safeguard the confidential nature of the tax information.
8. Alcoholic beverages gross receipts taxes imposed under chapters 11-09.1 and 40-05.1
are not subject to allocation under an agreement entered under this chapter.
57-39.10-06. Inapplicability of chapter 54-40.2.
Chapter 54-40.2 does not apply to an agreement entered under this chapter.
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57-39.10-07. Alcoholic beverages wholesale tax revenue allocation and distribution Refunds - Continuing appropriation.
1. The tax commissioner shall certify and transfer to the state treasurer for deposit in the
tribal allocation fund, a special fund created in the state treasury, tax revenues
allocated to a tribe or tribes under subsection 4 of section 57-39.10-03. Tax revenues
collected under section 57-39.10-03 are provided as a standing and continuing
appropriation to the state treasurer for distribution on a quarterly basis.
2. Refunds of the tax imposed under chapters 5-01, 5-02, and 5-03 which are subject to
an agreement under section 57-39.10-03 must be paid from the state general fund and
are provided to the state treasurer as a standing and continuing appropriation.
3. The tax commissioner shall determine the reservation of the tribe or tribes to which the
refund paid under subsection 2 is attributable. The refund, including interest at the rate
prescribed in section 5-03-06, must be reimbursed to the state general fund from the
first available moneys deposited in the tribal allocation fund on behalf of the tribe or
tribes to which the refund is attributable.
57-39.10-08. Tobacco products wholesale tax revenue allocation and distribution Refunds - Continuing appropriation.
1. The tax commissioner shall certify and transfer to the state treasurer for deposit in the
tribal allocation fund, a special fund created in the state treasury, tax revenues
allocated to a tribe or tribes under subsection 4 of section 57-39.10-04. Tax revenues
collected under section 57-39.10-04 are provided as a standing and continuing
appropriation to the state treasurer for distribution on a quarterly basis.
2. Refunds of the tax imposed under chapter 57-36 which are subject to an agreement
under section 57-39.10-04 must be paid from the general fund and are provided to the
state treasurer as a standing and continuing appropriation.
3. The tax commissioner shall determine the reservation of the tribe or tribes to which the
refund paid under subsection 2 is attributable. The refund must be reimbursed to the
state general fund from the first available moneys deposited in the tribal allocation fund
on behalf of the tribe or tribes to which the refund is attributable.
57-39.10-09. Alcoholic beverages gross receipts tax revenue allocation and
distribution - Refunds - Continuing appropriation.
1. The tax commissioner shall certify and transfer to the state treasurer for deposit in the
tribal allocation fund, a special fund created in the state treasury, tax revenues
allocated to a tribe or tribes under subsection 5 of section 57-39.10-05. Tax revenues
collected under section 57-39.10-05 are not subject to section 57-39.2-26.1, and are
provided as a standing and continuing appropriation to the state treasurer for
distribution on a quarterly basis.
2. Refunds of the tax imposed under chapter 57-39.6, which are subject to an agreement
under section 57-39.10-05, must be paid from the state general fund, and are provided
to the state treasurer as a standing and continuing appropriation.
3. Refunds of taxes paid under this section must be reimbursed to the state general fund,
with interest at the rate prescribed in section 57-39.2-25, from the first available
moneys deposited in the tribal allocation fund.
4. The tax commissioner shall determine the reservation of the tribe or tribes to which the
refund is attributable. The refund, including interest, must be reimbursed from the first
available moneys deposited in the tribal allocation fund on behalf of the tribe or tribes
to which the refund paid under this section is attributable.
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