Senate Bill 2449

AN ACT TO AMEND SECTION 27-65-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT "WHOLESALE SALES" UNDER THE SALES TAX LAW APPLY TO SALES OF BOXES, CRATES, CARTONS, CANS, BOTTLES AND OTHER PACKAGING MATERIALS TO A RETAILER OR RETAIL CUSTOM PROCESSOR FOR USE AS A CONTAINER TO ACCOMPANY GOODS SOLD BY THE RETAILER OR CUSTOM PROCESSOR, WHERE OWNERSHIP, RATHER THAN POSSESSION, OF THE BOXES, CRATES, CARTONS, CANS, BOTTLES AND OTHER PACKAGING MATERIALS PASSES TO THE CUSTOMER AT THE TIME OF SALE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 27-65-5, Mississippi Code of 1972, is amended as follows:

27-65-5. "Wholesaler," "jobber" or "distributor" means a person doing a regularly organized wholesale or jobbing business, known to the trade as such, and selling to licensed retail dealers or other wholesalers for resale in the regular course of business. This classification has no bearing on rates of tax due under this chapter, each sale or part of sales being taxable or exempt depending upon the class in which it falls.

"Wholesale sales" shall apply to:

(1) A sale of tangible personal property taxable under Sections 27-65-17 and 27-65-25 for resale in the regular line of business, when made in good faith to a retailer regularly selling or renting that property and when said dealer is licensed under Section 27-65-27 of this chapter if located in this state.

A sale of a service taxable under Section 27-65-23 for resale in the regular line of business, when made to a regular dealer in that service and when said dealer is licensed under Section 27-65-27 of this chapter if located in this state, or a charge for custom processing rendered upon merchandise for resale or rental by a dealer licensed under Section 27-65-27.

A sale of telecommunications services taxable under Section 27-65-19 for resale in the regular course of business, when made to a regular telecommunications provider of such service and such provider is the holder of a permit issued under Section 27-65-27 and is located in this state or is providing telecommunications services in this state.

"Wholesale sale" shall not include a transaction whereby property is delivered to and collection for same is made from a person that will consume the property rather than resell it even though the billing is to a retailer.

Provided, however, that when a taxpayer sells merchandise and has paid a rate equal to the retail rate of tax on the purchase price to a wholesaler, the taxpayer may take credit for the tax paid to the wholesaler from the tax due on the sale of the merchandise specifically included in his return to the commissioner.

(2) A sale of tangible personal property (except sand or gravel when sold by the producer thereof) or service which is to become a component part of a structure or improvement erected, constructed, repaired, or made only when such sale is made to a contractor taxable under Section 27-65-21 of this chapter on the contract in which the component materials are to be used; and only when the contractor holds a material purchase certificate as required by Section 27-65-21 of this chapter.

(3) A sale of boxes, crates, cartons, cans, bottles and other packaging materials to a retailer or retail custom processor for use as a container to accompany goods or services sold by said retailer or custom processor where ownership thereof will pass to the customer at the time of sale of the goods or services contained therein.

(4) The value of soft drinks and syrup withdrawn from the business by a manufacturer for sale at retail and food or drink withdrawn by a manufacturer or wholesaler to be sold through full service vending machines for human consumption.

The quantity of property or services sold or the price at which sold is immaterial in determining whether or not a sale is at wholesale. Sales may be classed as wholesale, or exempt, only if evidenced by proper and adequate records and invoices to substantiate the wholesale rate or exemption from the tax on each individual sale.

The substantiation of the wholesale sales must be by an invoice clearly indicating the date, the name and address of the vendor and vendee, the items sold and the price thereof. Such proof of wholesale sales shall be filed in chronological order and thus preserved for a period of three (3) years from the date of sale. These records shall be subject to inspection by the commissioner and his agents, at their discretion, for the verification of returns filed by either the wholesaler or his customers.

The substantiation of an exempt sale must be by an invoice containing the same information as required for the wholesale sales. This requirement shall apply equally to a retailer making wholesale or exempt sales.

Any failure to comply with all the above requirements shall subject the violator to the retail rate of tax on all such violations.

SECTION 2. This act shall take effect and be in force from and after July 1, 2006.