Del. Code 30, § 2901 : State Taxes — Retail And Wholesale Merchants' License Requirements And Taxes — Definitions

  • Date:

Current through 2016 Legislative Session, Act 399

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) "Feedstock petroleum products" means 1 or more petroleum products that have been partially refined that are used as raw materials at the beginning of a refining process operated by a petroleum product refiner.
(4) "Feedstock wholesaler" means every person engaged, as owner or agent, in the business of selling or exchanging for cash or barter or any consideration (i) crude oil to or with a petroleum product refiner or another feedstock wholesaler, or (ii) feedstock petroleum products to or with a petroleum product refiner or another feedstock wholesaler for the purpose of refining and resale by a petroleum product refiner, and includes without limitation crude oil and feedstock petroleum products sold or exchanged through pipelines, warehouses or other storage facilities and distribution depots of persons whose principal place of business is located inside or outside of the State.
(5) "Finished petroleum products" means 1 or more petroleum products that have been refined by a petroleum product refiner and that are of a type offered for sale by a petroleum product refiner to its customers in the ordinary course of business, including, but not limited to asphalt, distillate fuel oil (including all grades of diesel fuel and fuel oils), finished aviation gasoline, finished motor gasoline, kerosene, jet fuel (both kerosene-type and naphtha-type jet fuel), naphthas of all boiling ranges, other oils with boiling range equal to or greater than 401 degrees Fahrenheit, petrochemical feed stocks, petroleum coke, residual fuel oils, road oils, still gas, wax and other miscellaneous petroleum products, including, but not limited to petrolatum, lube refining by products, absorption oils, ram-jet fuel, petroleum rocket fuels, synthetic natural gas feed stocks and specialty oils.
(6) "Finished petroleum products wholesaler" means every person engaged, as owner or agent, in the business of buying from a petroleum product refiner finished petroleum products for cash or barter or any consideration for the purpose of further resale by the finished petroleum products wholesaler to a wholesaler or to a petroleum product refiner, and includes without limitation finished petroleum products sold or exchanged through pipelines, warehouses or other storage facilities and distribution depots of persons whose principal place of business is located inside or outside this State.
(7) "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.
(8) "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:
1. Delivery to the United States mail or to a common or contract carrier for shipment to a place outside this State;
2. 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 ];
3. Consideration for the sale of alcoholic liquor subject to tax under § 581 of Title 4;
4. 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;
5. 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 § 6307A(b)(1) of Title 29;
6. 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;
7. Receipts derived from printing contracts awarded by the Office of Management and Budget, Government Support Services;
8. Receipts derived by a feedstock wholesaler from the sale of crude oil to a petroleum product refiner or another feedstock wholesaler if:
A. The feedstock wholesaler that first owned the crude oil in this State took delivery of the crude oil outside of the State; or
B. The wholesaler of the crude oil that such wholesaler sold to or exchanged with the feedstock wholesaler paid the tax imposed by § 2902(b) and (c) of this title on the gross receipts from the sale to or exchange with the feedstock wholesaler of such crude oil;
9. Receipts derived by a feedstock wholesaler from the sale of feedstock petroleum products to a petroleum product refiner or another feedstock wholesaler if:
A. The feedstock wholesaler that first owned the feedstock petroleum products in this State took delivery of the feedstock petroleum products outside of the State; or
B. The wholesaler of the feedstock petroleum products that such wholesaler sold to or exchanged with the feedstock wholesaler paid the tax imposed by § 2902(b) and (c) of this title on the gross receipts from the sale to or exchange with the feedstock wholesaler of such feedstock petroleum products;
10. Receipts derived by a petroleum product refiner from the sale of intermediate petroleum products to an intermediate petroleum products wholesaler;
11. Receipts derived by an intermediate petroleum products wholesaler from the sale of intermediate petroleum products to a petroleum product refiner;
12. Receipts derived by a petroleum product refiner from the sale of finished petroleum products to a finished petroleum products wholesaler;
13. Receipts derived by a finished petroleum products wholesaler from the sale of finished petroleum products to a petroleum product refiner or a wholesaler; provided that the finished petroleum products wholesaler and the wholesaler stand in a control relationship. For purposes of the proceeding sentence a "control relationship" means that the finished petroleum products wholesaler directly or indirectly controls the wholesaler, the wholesaler directly or indirectly controls the finished petroleum products wholesaler or the finished petroleum products wholesaler and the wholesaler are directly or indirectly controlled by the same person. For purposes of the preceding sentence "controls" shall mean the direct or indirect ownership by 1 person of 100% of the stock or ownership interest in another person;
14. 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; or
15. Receipts derived by a pharmaceutical wholesaler from the sale of pharmaceutical drugs that are physically delivered to a pharmaceutical distribution wholesaler within this State.
(9) "Intermediate petroleum products" means 1 or more petroleum products that have been partially refined by a petroleum product refiner.
(10) "Intermediate petroleum products wholesaler" means every person engaged, as owner or agent, in the business of selling to or exchanging with a petroleum product refiner intermediate petroleum products for cash or barter or any consideration for the purpose of further refining or resale by the petroleum product refiner, and includes without limitation intermediate petroleum products sold or exchanged through pipelines, warehouses or other storage facilities and distribution depots of persons whose principal place of business is located inside or outside this State.
(11) "Person" includes an individual, partnership, firm, cooperative, corporation or any association of persons acting individually or as a unit.
(12) "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.
(13) "Petroleum product refiner" means any person engaged in the operation of a petroleum product refinery in this State, the principal raw material for which, measured by volume, consists of crude oil.
(14) "Pharmaceutical distribution wholesaler", for purposes of this chapter, is an person within this State who engages solely in the business of retail sales of pharmaceutical drugs by mail, common, or contract carrier.
(15) "Pharmaceutical drug", for purposes of this chapter, is a substance recognized as a drug in the Official United States Pharmacopoeia/National Formulary.
(16) "Pharmaceutical wholesaler", for purposes of this chapter, is any person engaged, as owner or agent, in the business of selling to another person pharmaceutical drugs for any consideration for the purpose of resale by the person acquiring the pharmaceutical drugs, and includes, without limitation, pharmaceutical drugs sold by the pharmaceutical wholesaler through outlets, warehouses, and distribution depots inside or outside of this State.
(17) 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.
(18) "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 paragraph (21)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.

(19) "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) ].
(20) "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.
(21)
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.
Del. C. § 2901
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); 77 Del. Laws, c. 412, §§ 1, 2; 78 Del. Laws, c. 1, § 5; 78 Del. Laws, c. 100, §§ 7 - 11; 78 Del. Laws, c. 275, §§ 1 - 3.;
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