As used in this article 28.5, unless the context
otherwise requires:
(1) Consumer means any person who has title to or possession of tobacco
products for the person's own use or consumption in this state and not for resale.
(2) (a) Delivery sale means, except as provided in subsection (2)(b) of this
section, the sale of tobacco products to a consumer in this state when:
(I) The consumer submits an order for the tobacco products to a delivery
seller for sale by means other than an over-the-counter sale on the delivery seller's
premises, including, but not limited to, telephone or other voice transmission, the
mail or other delivery service, or the internet or other online service; and
(II) The tobacco products are delivered when the seller is not in the physical
presence of the consumer when the consumer obtains possession of the tobacco
products by use of a common carrier, private delivery service, mail, or any other
means.
(b) Delivery sale does not include the sale of cigars or pipe tobacco.
(3) Delivery seller means a person located outside of this state who makes
delivery sales.
(4) Department means the department of revenue.
(5) Distributing subcontractor means every person, firm, limited liability
company, partnership, or corporation who purchases tobacco products from a
distributor for resale to a retailer in this state.
(6) Distributor means every person who:
(a) First receives tobacco products in this state;
(b) Sells tobacco products in this state and is primarily liable for the tobacco
products tax on such products;
(c) First sells or offers for sale in this state tobacco products imported into
this state from any other state or country; or
(d) Is a delivery seller.
(7) (a) Manufacturer's list price means, except as provided in subsections
(7)(b) and (7)(c) of this section, the invoice price for which a manufacturer or
supplier sells a tobacco product to a distributor or remote retail seller exclusive of
any discount or other reduction. In the case of cigars and pipe tobacco,
manufacturer's list price is also known as the acquisition cost and is also
exclusive of any discount or other reduction.
(b) For a delivery or remote retail seller, if determining the invoice price
described in subsection (7)(a) of this section is impracticable, then manufacturer's
list price means the average of the actual price paid, exclusive of any rebates or
discounts applied, for the tobacco product's stock keeping unit during the
preceding calendar year. The department may, by written notice to the delivery or
remote retail seller, prospectively require a delivery or remote retail seller to
calculate the tax on the invoice price if the department finds that the delivery or
remote retail seller's use of the average price paid was for the purpose of avoiding
tax.
(c) For a manufacturer who is also a delivery seller, a remote retail seller, or
a retailer, and who sells tobacco products exclusively to consumers and not to
suppliers or distributors, manufacturer's list price means the manufacturer's cost
to manufacture the tobacco product, which includes the manufacturing overhead
and the cost of all direct materials and direct labor used.
(8) Modified risk tobacco product means any tobacco product for which
the secretary of the United States department of health and human services has
issued an order authorizing the product to be commercially marketed as a modified
risk tobacco product in accordance with 21 U.S.C. sec. 387k, or any successor
section.
(9) Moist snuff means any finely cut, ground, or powdered tobacco that is
not intended to be smoked but does not include any finely cut, ground, or powdered
tobacco that is intended to be placed in the nasal cavity.
(10) (a) Remote retail sale means the sale of cigars or pipe tobacco to a
consumer in this state when:
(I) The consumer submits an order for the cigars or pipe tobacco to a remote
retail seller for sale by means other than an over-the-counter sale on the remote
retail seller's premises, including, but not limited to, telephone or other voice
transmission, the mail or other delivery service, or the internet or other online
service; and
(II) The cigars or pipe tobacco are delivered to the consumer by use of a
common carrier, private delivery service, mail, or any other means of remote
delivery, or when the remote retail seller is not in the physical presence of the
consumer when the consumer obtains possession of the cigars or pipe tobacco.
(b) Remote retail sale does not include the sale of tobacco products other
than cigars or pipe tobacco.
(11) Remote retail seller means a person located outside of this state who
makes remote retail sales.
(12) Sale means any transfer, exchange, or barter, in any manner or by any
means whatsoever, for a consideration, including all sales made by any person. The
term includes:
(a) A gift by a person engaged in the business of selling tobacco products,
for advertising, as a means of evading the provisions of this article 28.5 or for any
other purposes whatsoever;
(b) A delivery sale; and
(c) A remote retail sale.
(13) Stock keeping unit means the unique identifier assigned by the
distributor or remote retail seller to various items in order to track inventory.
(14) Tobacco products means cigars, cheroots, stogies, periques,
granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco, snuff,
snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos,
shorts, refuse scraps, clippings, cuttings and sweepings of tobacco, and other kinds
and forms of tobacco, prepared in such manner as to be suitable for chewing or for
smoking in a pipe or otherwise, or both for chewing and smoking, but does not
include cigarettes that are taxed separately pursuant to article 28 of this title 39.