TITLE 30

State Taxes

Commodity Taxes

CHAPTER 53. TOBACCO PRODUCT TAXATION AND LICENSING

Subchapter III. General Provisions


(a) A licensed tobacco products dealer may 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 tobacco products dealer may sell tax paid tobacco products to a tobacco products manufacturer's representative if the manufacturer's representative presents valid proof that the representative is a bona fide sales representative of the tobacco products 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 or delivered.

(c) A licensed tobacco products dealer may 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; 81 Del. Laws, c. 55, § 14.;

A tobacco products manufacturer's representative may sell only to a licensed tobacco products dealer, unless the representative obtains a dealer's license under this chapter and the rules and regulations promulgated under this chapter. A manufacturer's representative who participates in promotional activities involving the sale of tobacco products to persons other than licensees is presumed to be acting as an 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; 81 Del. Laws, c. 55, § 15.;

Repealed by 68 Del. Laws, c. 187, § 16, effective Jan. 1, 1992.;

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.;

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. The report must 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 fails to file any report on the day when it is 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; 81 Del. Laws, c. 55, § 16.;

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 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; 81 Del. Laws, c. 55, § 17.;

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. However, all sales are presumed to be taxable and the burden is upon the person claiming an exemption to prove such person's right to the exemption.

30 Del. C. 1953, § 5327; 54 Del. Laws, c. 296, § 1; 57 Del. Laws, c. 136, § 23; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 55, § 18.;

(a) A person who possesses or transports 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 is required to have in the person's possession invoices or delivery tickets and purchase orders for the tobacco products which must show all of the following:

(1) The true name and complete and exact address of the consignor or seller.

(2) The true name and complete and exact address of the person transporting the tobacco products.

(3) 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.

(b) Notwithstanding subsection (a) of this section, 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 is deemed to have complied with this chapter.

(c) The absence of proper invoices or delivery tickets and purchase orders required under this section is prima facie evidence that the 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; 81 Del. Laws, c. 55, § 19.;

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.;

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 a tax imposed under this chapter 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 the person.

(1) If the Secretary determines that a person must file a bond, the Secretary shall give notice to such person to that effect, specifying the amount of the bond required.

(2) The bond must be filed 5 days after the giving of notice under paragraph (1) of this section, unless within 5 days of such notice a request in writing for a hearing before the Secretary of Finance is made.

(3) At a hearing held under paragraph (2) of this section, the Secretary of Finance shall review and determine the necessity, propriety, and amount of the bond.

(4) The Secretary's determination is final and the person requesting the hearing must comply with the determination within 15 days after notice of the determination 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; 81 Del. Laws, c. 55, § 20.;