Subchapter III. General Provisions
TITLE 30
State Taxes
Commodity Taxes
CHAPTER 53. TOBACCO PRODUCT TAX
Subchapter III. General Provisions
§ 5321. Duties imposed on licensed tobacco product dealers; lists.
(a) A licensed tobacco product dealer shall not sell tobacco products or purchase tobacco products from any person required to be licensed who is not so licensed or is improperly licensed; except that a licensed wholesale dealer may sell tax paid tobacco products to a tobacco product manufacturer's representative; provided, that the manufacturer's representative presents valid proof that the representative is a bona fide sales representative of the tobacco product manufacturer.
(b) All holders of wholesale licenses shall maintain at every licensed location a list of the names and license numbers or holders of wholesale and retail licenses to whom tobacco products are sold and/or delivered.
(c) A licensed tobacco product dealer shall not sell smokeless tobacco products unless the package for such smokeless tobacco product bears a legible legend required by any federal law, rule or regulation relating to the possible hazard involved in use of the product.
30 Del. C. 1953, § 5321; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, § 23; 65 Del. Laws, c. 350, § 2; 70 Del. Laws, c. 186, § 1.;
§ 5322. Duties imposed on manufacturer's representatives.
A tobacco product manufacturer's representative may sell only to a licensed tobacco product dealer, unless the representative obtains a dealer's license under this chapter and the rules and regulations promulgated thereunder. A manufacturer's representative who participates in promotional activities involving the sale of tobacco products to persons other than licensees shall be presumed to be acting as agent of the licensee who furnished the tobacco products.
30 Del. C. 1953, § 5322; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, § 23; 70 Del. Laws, c. 186, § 1.;
§ 5323. Taxpayer's protest.
Repealed by 68 Del. Laws, c. 187, § 16, effective Jan. 1, 1992.
§ 5324. Sample packs.
The Department shall promulgate regulations governing the receipt, distribution of, and the payment of tax on, sample packs of tobacco products used for free distribution. The regulations may provide that any licensed dealer may receive and make free distribution of sample packs of tobacco products without affixing Delaware tobacco product tax stamps thereto, so long as the proper tax thereon has been paid.
30 Del. C. 1953, § 5324; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, §§ 23, 25.;
§ 5325. Late filing penalty.
Every stamp affixing agent shall file with the Department, on or before the twentieth day of each month, a report in such form as the Secretary of Finance shall prescribe, which report shall disclose the number of tobacco products on hand on the first and last days of the calendar month immediately preceding the month in which such report is required, together with such information concerning the amount of stamps purchased, used and on hand during the report period, together with any other information for the report period that the Secretary of Finance shall prescribe. Any tax affixing agent who shall fail to file any report on the day when it shall be due shall forfeit, as a penalty for each day thereafter until the report is filed, the sum of $15 to be collected in the manner provided in this chapter for the collection of penalties. The Secretary of Finance, if satisfied that the failure to comply with this section was excusable, may remit the whole or any part of said penalty.
30 Del. C. 1953, § 5325; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, § 23; 57 Del. Laws, c. 741, § 16D; 66 Del. Laws, c. 130, § 2.;
§ 5326. Refunds.
Whenever any packs of tobacco products upon which stamps have been placed have been sold and shipped into another state for sale or use therein, or have been sold to persons exempt under § 5305(d) of this title for resale to authorized purchasers, or have been returned to the manufacturer for credit because they became unfit for use and consumption or became unsalable by reason of fire, flood or other causes beyond the control of the person who sold the tobacco products and shipped them into another state for sale or for use therein or who sold the tobacco products to persons exempt under § 5305(d) of this title for resale to authorized purchasers or who owned the tobacco products at the time they were returned to manufacturer because they became unfit for use and consumption or unsalable by reason of fire, flood or other cause beyond the control of the person seeking the refund shall be entitled to a refund of the actual amount of tobacco product tax paid with respect to such tobacco products. If the Department is satisfied that a refund is proper, it shall certify the proposed amount of refund and thereafter shall issue to the person seeking the refund stamps and/or cash of sufficient value to cover the refund.
30 Del. C. 1953, § 5326; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, § 23.;
§ 5327. Exempt sales.
The Department may promulgate regulations to relieve authorized affixing agents from affixing stamps to packs of tobacco products to be sold and delivered to points outside the State for use outside the State, or to be sold to purchasers designated as exempt under § 5305(d) of this title for resale to authorized purchasers. All sales, however, shall be presumed to be taxable and the burden shall be upon the person claiming an exemption to prove such person's right thereto.
30 Del. C. 1953, § 5327; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, § 23; 70 Del. Laws, c. 186, § 1.;
§ 5328. Invoices or delivery tickets and purchase orders required in certain cases.
Every person who shall possess or transport 10 or more packs or packages (or an equivalent amount unpackaged) of unstamped tobacco products upon the public highways, roads or streets of this State for the purpose of delivery, sale or disposition shall be required to have in such person's possession invoices or delivery tickets and purchase orders for such tobacco products which shall show the true name and complete and exact address of the consignor or seller, the true name and complete and exact address of the person transporting the tobacco products, the quantity and brand of the tobacco products transported and the true name and complete and exact address of the person who has been licensed to assume the payment of the Delaware tax or the tax, if any, of the state or foreign country at the point of ultimate destination; provided, that any common carrier which has issued a bill of lading for shipment of tobacco products and is without notice to itself or to any of its agents or employees that the tobacco products are not stamped as required by this chapter shall be deemed to have complied with this chapter. The absence of such proper invoices or delivery tickets and purchase orders shall be prima facie evidence that such person is in violation of this chapter and subject to the penalties of this chapter.
30 Del. C. 1953, § 5328; 54 Del. Laws, c. 296, § 1; 55 Del. Laws, c. 277, § 1; 57 Del. Laws, c. 136, § 26; 70 Del. Laws, c. 186, § 1.;
§ 5329. Administration by Department; rules and regulations.
The administration, enforcement and collection of all taxes, permits, licenses and fees under this chapter are vested in the Department of Finance and the Secretary of Finance of the State, and the powers conferred upon the Department and the Secretary of Finance under Chapter 3 of this title shall, so far as applicable, be exercisable with respect to the provisions of this chapter. The Department may prescribe, adopt, promulgate and enforce rules and regulations relating thereto, including:
(1) The method and means to be used in the cancellation of stamps;
(2) The denominations and sale of stamps;
(3) The time and manner of filing reports;
(4) Any other matter or thing pertaining to the administration and enforcement of this chapter.
30 Del. C. 1953, § 5329; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 741, §§ 16C, 16D.;
§ 5330. Bonds.
The Secretary, at the Secretary's discretion, in order to protect the revenues to be obtained under this chapter, may require any person liable for the payment of the tobacco product tax to furnish a bond executed by a surety company authorized to do business in this State and approved by the State Insurance Commissioner as to solvency and responsibility, in such amounts as the Secretary may fix, to secure the payment of any tax and interest or penalties due or which may become due from such taxpayer. In the event that the Secretary determines that such person is to file such a bond, the Secretary shall give notice to such person to that effect, specifying the amount of the bond required. The bond shall be filed 5 days after the giving of such notice, unless within 5 days thereof a request in writing for a hearing before the Secretary of Finance shall be made, at which hearing the necessity, propriety and amount of the bond shall be reviewed and determined by the Secretary of Finance. Such determination by the Secretary shall be final and shall be complied with within 15 days after the notice thereof is sent by the Secretary to the person requesting the hearing.
30 Del. C. 1953, § 5330; 57 Del. Laws, c. 136, § 23; 57 Del. Laws, c. 741, § 16D; 70 Del. Laws, c. 186, § 1.;