(1) (a) (I) (A) Except
as provided in subsections (1)(a)(I)(B), (1.3), and (1.5) of this section, every retailer
shall be liable and responsible for the payment of an amount equivalent to the tax
imposed by section 39-26-106 (1).
(B) A retailer who has received in good faith from a qualified purchaser a
direct payment permit number issued pursuant to section 39-26-103.5 shall not be
liable or responsible for the collection and remittance of the tax imposed by this
article on any sale made to the qualified purchaser that is paid for directly from
such qualified purchaser's funds and not the personal funds of any individual.
(II) Repealed.
(b) Every retailer shall, before the twentieth day of each month, make a
return to the executive director of the department of revenue for the preceding
calendar month. The executive director shall determine what information the
returns must contain, how the returns must be made, and the type of forms that
must be used.
(c) (I) Every retailer shall remit, along with the return required in subsection
(1)(b) of this section, an amount equivalent to the percentage on sales as specified
in subsection (1)(a)(I) of this section to the executive director of the department of
revenue, less an amount as set forth in subsection (1)(d) of this section to cover the
retailer's expense in the collection and remittance of said tax.
(II) (Deleted by amendment, L. 2025, First Extraordinary Session.)
(III) If any retailer is delinquent in remitting said tax, other than in unusual
circumstances shown to the satisfaction of the executive director of the
department of revenue, the retailer shall not be allowed to retain any amounts
under subsection (1)(d) of this section to cover such retailer's expense in collecting
and remitting said tax, and an amount equivalent to the said percentage, plus the
amount of any local vendor expense that may be allowed by the local government
to the vendor, shall be remitted to the executive director by any such delinquent
vendor. Any local vendor expense remitted to the executive director shall be
deposited to the state general fund.
(d) (I) (A) For sales made on or after January 1, 2020, but before January 1,
2026, the amount retained by a retailer to cover the retailer's expense in collecting
and remitting tax in accordance with this section is four percent of the tax reported;
except that a retailer shall not retain more than one thousand dollars in any filing
period.
(B) (Deleted by amendment, L. 2025, First Extraordinary Session.)
(II) A retailer with multiple locations is treated as a single retailer for
purposes of this subsection (1)(d) and is required to register all locations under one
account with the department of revenue.
(III) Repealed.
(IV) Beginning January 1, 2022, a retailer is not permitted to retain any money
to cover the retailer's expenses in collecting and remitting tax in accordance with
this section for any filing period that the retailer's total taxable sales were greater
than one million dollars.
(V) Beginning January 1, 2026, a retailer is not permitted to retain any money
to cover the retailer's expenses in collecting and remitting state tax in accordance
with this section regardless of the retailer's total taxable sales for any filing period.
(1.3) (a) As used in this subsection (1.3), unless the context otherwise
requires:
(I) Alcoholic beverages drinking places industry means establishments
that may make sandwiches or light snacks available for consumption, that are open
to the public, and are known as bars, taverns, sales rooms, vintner's restaurants,
brew pubs, distillery pubs, nightclubs, or drinking places primarily engaged in
preparing and serving alcoholic beverages for immediate, on-premise consumption.
Alcoholic beverages drinking places industry does not mean breweries,
distilleries, wineries, and retail liquor, or drug stores that offer tastings.
(I.3) Catering industry means establishments, not including the mobile food
services industry or the food services contractor industry, that are primarily
engaged in providing single event-based food services for events such as
graduation parties, wedding receptions, business or retirement luncheons, or trade
shows and that have equipment and vehicles to transport meals and snacks to
events or to prepare food at an off-premise site. Catering industry includes
banquet halls with catering staff.
(I.5) Food services contractor industry means establishments, not including
the catering industry, that are primarily engaged in providing food services, for the
convenience of the contracting organization or the contracting organization's
customers, at institutional, governmental, commercial, or industrial locations of
others, based on contractual arrangements with these types of organizations for a
specified period of time, such as airline food service contractors; food concession
contractors at sporting, entertainment, or convention facilities; or cafeteria food
services contractors at schools, hospitals, or government offices.
(I.7) Hotel-operated restaurant, bar, or catering service means a restaurant
or other eating places industry establishment or an alcoholic beverages drinking
places industry establishment located on the premises of an establishment
primarily engaged in providing short-term lodging facilities and known as a hotel,
motor hotel, resort hotel, motel, bed-and-breakfast inn, tourist home, guest house,
youth hostel, or housekeeping cabin, including a hotel facility with a casino on the
premises. Hotel-operated restaurant, bar, or catering service includes the sale of
single event-based food services described in subsection (1.3)(a)(I.3) of this section
on the premises of the establishment. Hotel-operated restaurant, bar, or catering
service does not include sales of rooms or accommodations, gifts and sundries,
recreational services, conference rooms, convention services, laundry services,
parking, and other services.
(II) Mobile food services industry means retailers primarily engaged in
preparing and serving meals, snacks, or nonalcoholic beverages for immediate
consumption from motorized vehicles or nonmotorized carts. Mobile food services
industry does not mean retailers delivering food prepared only by third parties and
does not mean retailers shipping meal kits, heat-at-home meals, or other
unprepared food to consumers for home consumption.
(III) (A) Qualifying retailer means, for each month specified in subsection
(1.3)(a)(V)(A) of this section, a retailer doing business in the state that timely files
sales tax returns as required under subsection (1)(b) of this section and section 39-26-109, and that operates in the alcoholic beverages drinking places industry, the
restaurant and other eating places industry, or the mobile food services industry.
(B) Qualifying retailer means, for each month specified in subsection
(1.3)(a)(V)(B) of this section, a retailer doing business in the state that timely files
sales tax returns as required under subsection (1)(b) of this section and section 39-26-109, and that operates in the alcoholic beverages drinking places industry, the
catering industry, the food services contractor industry, the restaurant and other
eating places industry, or the mobile food services industry, or that operates a
hotel-operated restaurant, bar, or catering service.
(C) Qualifying retailer means, for the specified sales tax period in
subsection (1.3)(a)(V)(C) of this section, a retailer doing business in the state that
timely files sales tax returns as required under subsection (1)(b) of this section and
section 39-26-109 and that operates in the alcoholic beverages drinking places
industry, the catering industry, the food services contractor industry, the restaurant
and other eating places industry, or the mobile food services industry, or that
operates a hotel-operated restaurant, bar, or catering service.
(IV) Restaurant and other eating places industry means establishments,
not including establishments selling food from mobile vehicles, establishments
presenting live theatrical productions and other entertainment facilities, hotels or
bed and breakfast establishments, specialty food stores, vending machines,
caterers or other food service contractors, or private cafeterias at workplaces,
universities, or hospitals, that are open to the public, are known as restaurants,
cafes, lunch counters, and carryout shops, and are primarily engaged in one of the
following:
(A) Providing prepared food services at a fixed, physical premises to patrons
who order and are served while seated, and who pay after eating;
(B) Providing prepared food services at a fixed, physical premises to patrons
who generally order or select items and who pay before eating; or
(C) Preparing or serving specialty snacks or nonalcoholic beverages at a
fixed, physical premises to patrons who pay before eating for consumption on or
near the premises.
(V) (A) After December 7, 2020, but before June 14, 2021, specified sales tax
period means sales made in November 2020, December 2020, January 2021, and
February 2021, for which monthly returns must be filed pursuant to subsection (1)(b)
of this section, on December 21, 2020, January 20, 2021, February 22, 2021, and
March 22, 2021, respectively.
(B) On and after June 14, 2021, but before June 3, 2022, specified sales tax
period means sales made in June 2021, July 2021, and August 2021, for which
monthly returns must be filed pursuant to subsection (1)(b) of this section, on July
20, 2021, August 20, 2021, and September 20, 2021, respectively.
(C) On and after June 3, 2022, specified sales tax period means sales made
in July 2022, August 2022, and September 2022, for which monthly returns must be
filed pursuant to subsection (1)(b) of this section, on August 20, 2022, September
20, 2022, and October 20, 2022, respectively.
(VI) State net taxable sales means all sales made by the qualifying retailer
during the specified sales tax period of tangible personal property, commodities,
and services as specified in section 39-26-104, less any deductions and exemptions
authorized in this article 26, without regard to the deduction authorized in this
subsection (1.3).
(b) (I) A qualifying retailer in the alcoholic beverages drinking places
industry, in the restaurant and other eating places industry, in the food services
contractor industry, or operating a hotel-operated restaurant, bar, or catering
service may deduct from state net taxable sales the lesser of state net taxable
sales or seventy thousand dollars and retain the resulting sales tax collected for
each month specified in subsection (1.3)(a)(V) of this section.
(II) For each month specified in subsection (1.3)(a)(V) of this section, one
deduction described in subsection (1.3)(b)(I) of this section is allowed per month for
each of up to five fixed physical premises that are properly licensed under section
39-26-103 (2)(a), to a qualifying retailer in the alcoholic beverages drinking places
industry, in the restaurant and other eating places industry, in the food services
contractor industry, or operating a hotel-operated restaurant, bar, or catering
service. No deduction is allowed for:
(A) Nonphysical sites that are established for purposes of reporting sales
delivered into a taxing area; or
(B) Any temporary place of business or special event.
(c) A qualifying retailer in the mobile food services industry may deduct from
state net taxable sales the lesser of aggregate state net taxable sales for all sites
or seventy thousand dollars per motorized vehicle or nonmotorized cart, not to
exceed five motorized vehicles or nonmotorized carts, and retain the resulting state
sales tax collected for each month specified in subsection (1.3)(a)(V)(A) of this
section.
(c.5) A qualifying retailer in the catering industry may deduct from state net
taxable sales the lesser of aggregate state net taxable sales for all events or
seventy thousand dollars, and retain the resulting state sales tax collected for each
month specified in subsection (1.3)(a)(V) of this section.
(d) If a qualifying retailer is in both the restaurant and other eating places
industry and the mobile food services industry, the qualifying retailer may claim the
deduction for no more than five physical sites and for no more than five motorized
vehicles and nonmotorized carts.
(e) The qualifying retailer must continue to hold state sales taxes in excess
of the amount retained in trust until paid to the department of revenue as specified
in section 39-26-118.
(f) The deduction and sales tax retention allowed in this subsection (1.3)
applies to state net taxable sales only. Qualifying retailers may not retain payment
of city, county, or special district sales taxes collected by the department of
revenue. Nothing in this subsection (1.3) prevents any local government from
rebating sales taxes collected by qualifying retailers pursuant to a local ordinance.
(f.5) To the extent information is available and without changing the sales
tax return form, the department of revenue shall include a report to its committee
of reference at a hearing held in January 2022 pursuant to section 2-7-203 (2)(a) of
the State Measurement for Accountable, Responsive, and Transparent (SMART)
Government Act specifying:
(I) The sales tax revenue the state did not collect as a result of the deduction
allowed in this subsection (1.3); and
(II) How many retailers elected to take advantage of the deduction allowed
in this subsection (1.3).
(f.7) To the extent that information is available and without changing the
sales tax return form, the department of revenue shall include a report to its
committee of reference at a hearing held in January 2023 pursuant to section 2-7-203 (2)(a) of the State Measurement for Accountable, Responsive, and
Transparent (SMART) Government Act specifying:
(I) The amount of sales tax revenue that the state did not collect in 2022 as a
result of the deduction allowed in this subsection (1.3); and
(II) How many retailers elected to take advantage of the deduction allowed
in this subsection (1.3) in 2022.
(g) This subsection (1.3) is repealed, effective December 31, 2026.
(1.5) (a) With respect to sales of tangible personal property, commodities, or
services made by marketplace sellers in or through a marketplace facilitator's
marketplace, a marketplace facilitator has all of the liabilities, obligations, and
rights of a retailer or vendor under subsection (1) of this section and this article 26
whether or not the marketplace seller, because the marketplace seller is a
multichannel seller:
(I) Has or is required to have a license under section 39-26-103; or
(II) Would have been required to collect and remit tax under this article 26
had the sale not been made in or through the marketplace.
(b) The liabilities, obligations, and rights set forth in subsection (1.5)(a) of this
section are in addition to any requirements the marketplace facilitator has under
subsection (1) of this section if it also offers for sale tangible personal property,
commodities, or services through other means.
(c) Except as provided in subsection (3)(b) of this section, a marketplace
seller, with respect to sales of tangible personal property, commodities, or services
made in or through a marketplace facilitator's marketplace, does not have the
liabilities, obligations, or rights of a retailer or vendor under subsection (1) of this
section and this article 26 if the marketplace seller can show that such sale was
facilitated by a marketplace facilitator:
(I) With whom the marketplace seller has a contract that explicitly provides
that the marketplace facilitator will collect and remit sales tax on all sales subject
to tax under this article 26; or
(II) From whom the marketplace seller requested and received in good faith a
certification that the marketplace facilitator is registered to collect sales tax and
will collect sales tax on all sales subject to tax under this article 26 made in or
through the marketplace facilitator's marketplace.
(2) The executive director of the department of revenue may extend the time
for making a return and paying the taxes due under such reasonable rules as the
executive director may prescribe, but no such extension shall be for a greater
period than is provided for in section 39-26-109.
(3) (a) Except as provided in subsection (3)(b) of this section, the burden of
proving that any retailer is exempt from collecting the tax on any goods sold and
paying the same to the executive director of the department of revenue, or from
making such returns, shall be on the retailer under such reasonable requirements of
proof as the executive director may prescribe.
(b) (I) If a marketplace facilitator demonstrates to the satisfaction of the
executive director of the department of revenue that the marketplace facilitator
made a reasonable effort to obtain accurate information regarding the obligation to
collect tax from the marketplace seller and that the failure to collect tax on any
tangible personal property, commodities, or services sold was due to incorrect
information provided to the marketplace facilitator by the marketplace seller, then
the marketplace facilitator, but not the marketplace seller, is relieved of liability
under this section for the amount of the tax the marketplace facilitator failed to
collect, plus applicable penalties and interest.
(II) If a marketplace facilitator is relieved of liability under subsection (3)(b)(I)
of this section, the marketplace seller is liable under this section for the amount of
tax the marketplace facilitator failed to collect, plus applicable penalties and
interest.
(III) This subsection (3)(b) does not apply to any sale by a marketplace
facilitator that is not facilitated on behalf of a marketplace seller or that is
facilitated on behalf of a marketplace seller who is an affiliate of the marketplace
facilitator.
(4) Every retailer conducting a business in which the transaction between
the retailer and the consumer consists of the supplying of tangible personal
property and services in connection with the maintenance or servicing of the same
shall be required to pay the taxes levied under this article upon the full contract
price, unless application is made to the executive director of the department of
revenue for permission to use a percentage basis of reporting the tangible personal
property sold and the services supplied under such contract. The executive director
is authorized to determine the percentage based upon the ratio of the tangible
personal property included in the consideration as it bears to the total of the
consideration paid under said combination contract or sale that is subject to the
sales tax levied under the provisions of this part 1. This section shall not be
construed to include items upon which the sales tax is imposed on the full purchase
price as designated in section 39-26-102 (12).
(5) (a) A qualified purchaser may provide a direct payment permit number to
a retailer that is liable and responsible for collecting and remitting the tax imposed
by this article on any sale made to the qualified purchaser. A qualified purchaser
holding a direct payment permit number shall, before the twentieth day of each
month subsequent to the month in which any sale to the qualified purchaser was
made for which the qualified purchaser's direct payment permit number was used,
make a return and remit directly to the executive director of the department of
revenue the amount of such tax owing on all such sales to the qualified purchaser
made in the preceding month. Such returns of the qualified purchaser or duly
authorized agent shall contain such information and be made in such manner and
upon such forms as the executive director shall prescribe.
(b) Repealed.
(c) From the amount of the tax required to be remitted pursuant to
subsection (5)(a) of this section, a qualified purchaser shall be entitled to retain the
amount specified in subsection (1)(d) of this section that a retailer would otherwise
be entitled to retain to cover the retailer's expense in collecting and remitting the
tax imposed by this article 26 if the qualified purchaser had not provided a direct
payment permit number to the retailer.