CHAPTER 417

FORMERLY

HOUSE BILL NO. 693

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTERS 21, 23 AND 29 OF TITLE 30 OF THE DELAWARE CODE TO PROVIDE FOR LICENSING AND GROSS RECEIPTS TAXATION OF NURSERIES AS FARMS, RETAILERS, OR WHOLESALERS, AS APPLICABLE, AND TO MAKE RELATED CHANGES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each House thereof concurring therein):

Section 1. Amend Section 2301, Title 30 of the Delaware Code by strildhg all of (a) (56) and substituting in lieu thereof the following:

"(56) Retail plant nursery and florist, $50. "Retail plant nursery and florist" includes every person in the business of operating a place where trees, shrubs, plants, flowers and the like are cultivated, grown or propagated from seed or are purchased from another person for sale other than as a wholesaler as that term is defined by §2901 (7) of this title."

Section 2. Amend subsection (7) of §2901, Title 30 of the Delaware Code by adding a new subparagraph (e) as follows:

"(e) 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."

Section 3. Amend subsection (5) of §2901, Title 30, Delaware Code, by striking said subsection and substituting in lieu thereof the following:

"(5) "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 nurserymen and florists, hucksters, peddlers, and also includes trading stamp redemption stores and catalog stores; and includes branch stores."

Section 4. Amend subsection (a) of §2301, Title 30, Delaware Code, by striking subparagraph (56) thereof and by renumbering the remaining subparagraphs of that subsection in sequential order, beginning by renumbering existing subparagraph (57) as a new subparagraph (56), and so forth, so that all remaining subparagraphs shall appear in numerical order thereafter.

Section 5. Amend subsection (b) of §2908, Title 30, Delaware Code, by striking said subsection and substituting in lieu thereof the followings

"(b) This chapter shall not apply to the sale of unprocessed agricultural products, including nursery or floral products, by the owner or operator of a farm or nursery; nor shall this chapter 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; provided, however, that growers of nursery products shall be treated under this chapter as retailers to the extent of sales at retail."

Section 6. Amend subsection (a) of §2114, Title 30, Delaware Code, by striking said subsection and substituting in lieu thereof the following'

"(a) In each case where more than 1 occupation or business for which a license Is required is carried on by the same person at the same time, a license must be taken out for each such occupation or business. Where any provision of this part Is based upon a percentage of the volume of the business of a taxpayer as defined in any Chapter of this part, nothing contained in this part shall be construed to require the imposition of more than one tax or license upon such volume where the same goods, product, or services are involved in the activity of the same taxpayer; provided however, subject to §2908 of this title, where the taxpayer Is engaged in separate occupations or businesses covered by this part, the volume of each such separate occupation or business of the taxpayer covered by any provisions of this part shall be taxed or subject to a license fee at least once and at the highest rate applicable to such occupation or business, and provided that, where a person is required to have more than one license, and such person is unable to substantiate with certainty that a specific volume of business is attributable to each of such licensable businesses or occupations, then the entire volume of as much of such business activity as cannot be so attributed shall be taxed at the highest tax rate pertaining to any fraction of such total volume. For the purpose of Chapter 29 of this title, unless shown to the contrary by the taxpayer, (a) it shall be deemed that S2905 of this title is applicable to each business rather than §2902 of this title, and (b) it shall be deemed that all goods sold by a wholesaler to which §2902 of this applies were sold within this state. The Secretary of Finance shall issue rules and regulations specifically governing the implementation of this section in accordance with the power granted in §2103 of this title."

Section 7. (a) Section 1 of this Act shall be effective from the first day of the month following adoption through December 31, 1982, inclusive.

(b) Sections 2, 5, and 6 of this Act shall be effective on the first day of the month following adoption of this Act.

(c) Sections 3 and 4 of this Act shall be effective January 1, 1983.

Approved July 21, 1982.