57-39.2-01. Definitions

57-39.2-01. Definitions

The following words, terms, and phrases, when used in this chapter, have the meaning

ascribed to them in this section, unless the context clearly indicates a different meaning:

1. "Bundled transaction" means the retail sale of two or more products, except real

property and services to real property, where the products are otherwise distinct and

identifiable, and the products are sold for one nonitemized price. A bundled transaction

does not include the sale of any products in which the sales price varies, or is

negotiable, based on the selection by the purchaser of the products included in the

transaction.

a. Distinct and identifiable products do not include:

(1) Packaging such as containers, boxes, sacks, bags, and bottles or other

materials such as wrapping, labels, tags, and instruction guides that

accompany the retail sale of the products and are incidental or immaterial to

the retail sale. Examples of packaging that are incidental or immaterial

include grocery sacks, shoeboxes, drycleaning garment bags, and express

delivery envelopes and boxes.

(2) A product provided free of charge with the required purchase of another

product. A product is provided free of charge if the sales price of the product

purchased does not vary depending on the inclusion of the product provided

free of charge.

(3) Items included in the definition of gross receipts.

b. The phrase "one nonitemized price" does not include a price that is separately

identified by product on binding sales or other supporting sales-related

documentation made available to the customer in paper or electronic form,

including an invoice, bill of sale, receipt, contract, service agreement, lease

agreement, periodic notice of rates and services, rate card, or price list.

c. A transaction that otherwise meets the definition of a bundled transaction as

defined in this section is not a "bundled transaction" if it is:

(1) The retail sale of tangible personal property and a service where the

tangible personal property is essential to the use of the service, and is

provided exclusively in connection with the service, and the true object of

the transaction is the service;

(2) The retail sale of services where one service is provided that is essential to

the use or receipt of a second service and the first service is provided

exclusively in connection with the second service and the true object of the

transaction is the second service;

(3) A transaction that includes taxable products and nontaxable products and

the purchase price or sales price of the taxable products is de minimis.

(a) "De minimis" means the seller's purchase price or sales price of the

taxable products is ten percent or less of the total purchase price or

sales price of the bundled products.

(b) Sellers shall use either the purchase price or the sales price of the

products to determine if the taxable products are de minimis. Sellers

may not use a combination of the purchase price and sales price of

the products to determine if the taxable products are de minimis.

(c) Sellers shall use the full term of a service contract to determine if the

taxable products are de minimis; or

(4) The retail sale of exempt tangible personal property and taxable tangible

personal property where:

(a) The transaction includes food and food ingredients, drugs, durable

medical equipment, mobility-enhancing equipment, over-the-counter

drugs, prosthetic devices, or medical supplies; and

shall use the full term of a service contract to determine if the

taxable products are de minimis; or

(4) The retail sale of exempt tangible personal property and taxable tangible

personal property where:

(a) The transaction includes food and food ingredients, drugs, durable

medical equipment, mobility-enhancing equipment, over-the-counter

drugs, prosthetic devices, or medical supplies; and

(b) If the seller's purchase price or sales price of the taxable tangible

personal property is fifty percent or less of the total purchase price or

sales price of the bundled tangible personal property. Sellers may not

use a combination of the purchase price and sales price of the

tangible personal property when making the fifty percent determination

for a transaction.

2. "Business" includes any activity engaged in by any person or caused to be engaged in

by the person with the object of gain, benefit, or advantage, either direct or indirect.

3. "Certified automated system" means software certified under chapter 57-39.4 to

calculate the tax imposed by each jurisdiction on a transaction, determine the amount

of tax to remit to the state, and maintain a record of the transaction.

4. "Certified service provider" means an agent certified under the agreement adopted

under chapter 57-39.4 to perform all of the seller's sales and use tax functions, other

than the seller's obligation to remit taxes on its own purchases.

5. "Commissioner" means the tax commissioner of the state of North Dakota.

6. "Computer software maintenance contract" is a contract that obligates a vendor of

computer software to provide a customer with future updates or upgrades to computer

software, support services with respect to computer software, or both.

7. "Delivery charges" means charges by the seller for preparation and delivery to a

location designated by the purchaser of personal property or services. For purposes of

this subsection, "preparation and delivery" includes transportation, shipping, postage,

handling, crating, and packing. If shipment includes exempt property and taxable

property, the seller should allocate the delivery charge by using a percentage based

on:

a. The total sales price of the taxable property compared to the total sales price of

all property in the shipment; or

b. 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.

8. "Direct mail" means printed material delivered or distributed by United States mail or

other delivery service to a mass audience or to addresses on a mailing list provided by

the purchaser or at the direction of the purchaser when the cost of the items are not

billed directly to the recipients. "Direct mail" includes tangible personal property

supplied directly or indirectly by the purchaser to the direct mail seller for inclusion in

the package containing the printed material. "Direct mail" does not include multiple

items of printed material delivered to a single address.

9. "Drug" 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:

a. Recognized in the official United States pharmacopoeia, official homeopathic

pharmacopoeia of the United States, or official national formulary, or any

supplement of any of these publications;

b. Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of

disease; or

c. Intended to affect the structure or any function of the body.

10. "Farm machinery" means all vehicular implements and attachment units, designed and

sold for direct use in planting, cultivating, or harvesting farm products or used in

al formulary, or any

supplement of any of these publications;

b. Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of

disease; or

c. Intended to affect the structure or any function of the body.

10. "Farm machinery" means all vehicular implements and attachment units, designed and

sold for direct use in planting, cultivating, or harvesting farm products or used in

connection with the production of agricultural produce or products, livestock, or poultry

on farms, which are operated, drawn, or propelled by motor or animal power. "Farm

machinery" does not include vehicular implements operated wholly by hand or a motor

vehicle required to be registered under chapter 57-40.3. "Farm machinery" does not

include machinery that may be used for other than agricultural purposes, including

tires, farm machinery repair parts, tools, shop equipment, grain bins, feed bunks,

fencing materials, and other farm supplies and equipment. For purposes of this

subsection, "attachment unit" means any part or combination of parts having an

independent function, other than farm machinery repair parts, which when attached or

affixed to farm machinery is used exclusively for agricultural purposes.

11. "Farm machinery repair parts" means repair or replacement parts for farm machinery

that have a specific or generic part number assigned by the manufacturer of the farm

machinery. "Farm machinery repair parts" do not include tires, fluid, gas, grease,

lubricant, wax, or paint.

12. a. "Gross receipts" means the measure subject to sales tax and means the total

amount of consideration, including cash, credit, property, and services, for which

personal property or services are sold, leased, or rented, valued in money,

whether received in money or otherwise, without any deduction for the following:

(1) The seller's cost of the property sold;

(2) The cost of materials used, labor or service costs, interest, losses, all costs

of transportation to the seller, all taxes imposed on the seller, and any other

expense of the seller;

(3) Charges by the seller for any services necessary to complete the sale, other

than delivery and installation charges;

(4) Delivery charges; and

(5) Credit for any trade-in, as determined by state law.

b. "Gross receipts" also includes consideration received by the seller from third

parties if:

(1) The seller actually receives consideration from a party other than the

purchaser and the consideration is directly related to a price reduction or

discount on the sale;

(2) The seller has an obligation to pass the price reduction or discount through

to the purchaser;

(3) The amount of the consideration attributable to the sale is fixed and

determinable by the seller at the time of the sale of the item to the

purchaser; and

(4) One of the following criteria is met:

(a) The purchaser presents a coupon, certificate, or other documentation

to the seller to claim a price reduction or discount where the coupon,

certificate, or documentation is authorized, distributed, or granted by a

third party with the understanding that the third party will reimburse

any seller to whom the coupon, certificate, or documentation is

presented;

(b) The purchaser provides identification to the seller to show that the

purchaser is a member of a group or organization entitled to a price

reduction or discount, however, a "preferred customer" card that is

available to any patron does not constitute membership in such a

group; or

at the third party will reimburse

any seller to whom the coupon, certificate, or documentation is

presented;

(b) The purchaser provides identification to the seller to show that the

purchaser is a member of a group or organization entitled to a price

reduction or discount, however, a "preferred customer" card that is

available to any patron does not constitute membership in such a

group; or

(c) The price reduction or discount is identified as a third-party price

reduction or discount on the invoice received by the purchaser or on a

coupon, certificate, or other documentation presented by the

purchaser.

c. "Gross receipts" also includes the total amount of sales of every clerk, auctioneer,

agent, or factor selling tangible personal property owned by any other retailer.

d. "Gross receipts" does not include:

(1) Discounts, including cash, term, or coupons that are not reimbursed by a

third party, which are allowed by a seller and taken by a purchaser on a

sale;

(2) Interest, financing, and carrying charges from credit extended on the sale of

personal property or services, if the amount is separately stated on the

invoice, bill of sale, or similar document given to the purchaser;

(3) Any taxes legally imposed directly on the consumer that are separately

stated on the invoice, bill of sale, or similar documents given to the

purchaser;

(4) The sale price of property returned by a customer when the full sale price is

refunded either in cash or credit. When tangible personal property is taken

in trade or in a series of trades as a credit or part payment of a retail sale

taxable under this chapter, if the tangible personal property traded in will be

subject to tax imposed by chapter 57-39.5 or 57-40.3 or if the tangible

personal property traded in is used farm machinery or used irrigation

equipment, the credit or trade-in value allowed by the retailer is not included

in gross receipts of the retailer; and

(5) The amount of compensation received from an insurance company for the

loss of a stolen or totally destroyed watercraft that has been previously

taxed under this chapter or chapter 57-40.2, if that compensation is used as

a trade-in on the purchase of a replacement watercraft. The trade-in credit is

not included in the gross receipts of the retailer.

(a) If a watercraft is purchased by an owner who has had a watercraft

stolen or totally destroyed, a trade-in credit must be allowed against

one or more replacement watercraft purchases in a cumulative

amount not to exceed the total amount of compensation from the

insurance company for the loss.

(b) The purchaser of a replacement watercraft shall provide the seller with

an original notarized statement from the insurance company verifying

the original watercraft was a total loss and indicating the date and

amount of compensation.

(c) If the full amount of trade-in credit under this section has not been

used, the seller shall record on the face of the notarized statement the

necessary information to identify partial use of the credit, retain a copy

of the notarized statement to verify the credit allowed, and return the

original notarized statement to the purchaser. If the full amount of the

credit has been used, the seller shall retain the original notarized

statement to verify the amount of trade-in credit allowed.

cord on the face of the notarized statement the

necessary information to identify partial use of the credit, retain a copy

of the notarized statement to verify the credit allowed, and return the

original notarized statement to the purchaser. If the full amount of the

credit has been used, the seller shall retain the original notarized

statement to verify the amount of trade-in credit allowed.

(d) Trade-in credit for a watercraft stolen or totally destroyed may be

applied to purchases of replacement watercraft made within three

years from the date of compensation by the insurance company.

13. "Irrigation equipment repair parts" means repair or replacement parts for irrigation

equipment which have a specific or generic part number assigned by the manufacturer

of the irrigation equipment. The term does not include tires, fluid, gas, grease,

lubricant, wax, or paint.

14. "Lease or rental" means any transfer of possession or control of tangible personal

property for a fixed or indeterminate term for consideration. A lease or rental may

include future options to purchase or extend. "Lease or rental" does not include:

a. A transfer of possession or control of property under a security agreement or

deferred payment plan, which requires the transfer upon completion of the

required payments;

b. A transfer of possession or control of property under an agreement that requires

the transfer of title upon completion of required payments and payment of an

option price that does not exceed the greater of one hundred dollars or one

percent of the total required payments; or

c. Providing tangible personal property with an operator for a fixed or indeterminate

period of time. A condition of this exclusion is that the operator is necessary for

the equipment to perform as designed. For the purpose of this subdivision, an

operator must do more than maintain, inspect, or set up the tangible personal

property.

This definition will be applied only prospectively from the date of adoption and will

have no retroactive impact on existing leases or rentals.

15. "Local governmental unit" means incorporated cities, counties, school districts, and

townships.

16. "Mandatory computer software maintenance contract" is a computer software

maintenance contract that the customer is obligated by contract to purchase as a

condition to the retail sale of computer software.

17. "Optional computer software maintenance contract" is a computer software

maintenance contract that the customer is not obligated to purchase as a condition to

the retail sale of computer software.

18. "Person" includes any individual, firm, partnership, joint venture, association,

corporation, limited liability company, estate, business trust, receiver, or any other

group or combination acting as a unit and the plural as well as the singular number.

19. "Prescription" means an order, formula, or recipe issued in any form of oral, written,

electronic, or other means of transmission by a person authorized by the laws of this

state to prescribe drugs.

20. "Relief agency" means the state, any county, city and county, city or district thereof, or

an agency engaged in actual relief work.

21. "Retail sale" or "sale at retail" means any sale, lease, or rental for any purpose other

than for resale, sublease, or subrental. "Retail sale" or "sale at retail" includes the sale,

including the leasing or renting, to a consumer or to any person for any purpose, other

than for processing or for resale, of tangible personal property; the sale of steam, gas,

and communication service, excluding internet access service, to retail consumers or

users; the sale of vulcanizing, recapping, and retreading services for tires; the

ordering, selecting, or aiding a customer to select any goods, wares, or merchandise

from any price list or catalog, which the customer might order, or be ordered for such

e, of tangible personal property; the sale of steam, gas,

and communication service, excluding internet access service, to retail consumers or

users; the sale of vulcanizing, recapping, and retreading services for tires; the

ordering, selecting, or aiding a customer to select any goods, wares, or merchandise

from any price list or catalog, which the customer might order, or be ordered for such

customer to be shipped directly to such customer; the sale or furnishing of hotel,

motel, or other accommodations, tickets, or admissions to any place of amusement,

athletic event, or place of entertainment; and the sales of magazines and other

periodicals. By the term "processing" is meant any tangible personal property,

including containers which it is intended, by means of fabrication, compounding,

manufacturing, producing, or germination shall become an integral or an ingredient or

component part of other tangible personal property intended to be sold ultimately at

retail. The sale of an item of tangible personal property for the purpose of incorporating

it in or attaching it to real property must be considered as a sale of tangible personal

property for a purpose other than for processing; the delivery of possession within the

state of North Dakota of tangible personal property by a wholesaler or distributor to an

out-of-state retailer who does not hold a North Dakota retail sales tax permit or to a

person who by contract incorporates such tangible personal property into, or attaches

it to, real property situated in another state may not be considered a taxable sale if

such delivery of possession would not be treated as a taxable sale in that state. As

used in this subsection, the word "consumer" includes any hospital, infirmary,

sanatorium, nursing home, home for the aged, or similar institution that furnishes

services to any patient or occupant. The sale of an item of tangible personal property

to a person under a finance leasing agreement over the term of which the property will

be substantially consumed must be considered a retail sale if the purchaser elects to

treat it as such by paying or causing the transferor to pay the sales tax thereon to the

commissioner on or before the last day on which payments may be made without

penalty as provided in section 57-39.2-12.

22. "Retailer" or "seller" includes every person engaged in the business of leasing or

renting hotel, motel, or other accommodations, and every person engaged in the

business of selling tangible goods, wares, or merchandise at retail, or furnishing of

steam, gas, and communication services, excluding internet access service, or tickets

or admissions to places of amusement, entertainment, and athletic events, or

magazines or other periodicals; and includes any person as herein defined who by

contract or otherwise agrees to furnish for a consideration a totally or partially finished

product consisting in whole or in part of tangible personal property subject to the sales

tax herein provided, and all items of tangible personal property entering into the

performance of such contract as a component part of the product agreed to be

furnished under said contract shall be subject to the sales tax herein provided and the

sales tax thereon shall be collected by the contractor from the person for whom the

contract has been performed in addition to the contract price agreed upon, and shall

be remitted to the state in the manner provided in this chapter; and shall include the

state or any municipality furnishing steam, gas, or communication service to members

of the public in its proprietary capacity. For the purpose of this chapter, retailer shall

also include every clerk, auctioneer, agent, or factor selling tangible personal property

owned by any other retailer.

23. "Sale" means any transfer of title or possession, exchange or barter, conditional or

include the

state or any municipality furnishing steam, gas, or communication service to members

of the public in its proprietary capacity. For the purpose of this chapter, retailer shall

also include every clerk, auctioneer, agent, or factor selling tangible personal property

owned by any other retailer.

23. "Sale" means any transfer of title or possession, exchange or barter, conditional or

otherwise, in any manner or by any means whatever, for a consideration, and includes

the furnishing or service of steam, gas, or communication, excluding internet access

service, the furnishing of hotel, motel, or other accommodations, the furnishing of

tickets or admissions to any place of amusement, athletic event, or place of

entertainment, and sales of magazines and other periodicals. Provided, the words

"magazines and other periodicals" as used in this subsection do not include

newspapers nor magazines or periodicals that are furnished free by a nonprofit

corporation or organization to its members or because of payment by its members of

membership fees or dues.

24. "Sales tax" means the tax levied under section 57-39.2-02.1 or a conforming tax

imposed under home rule authority by a city or county.

25. "Tangible personal property" means personal property that can be seen, weighed,

measured, felt, or touched or that is in any other manner perceptible to the senses.

"Tangible personal property" includes electricity, water, gas, steam, and prewritten

computer software.