Article 5.

Sales and Use Tax.

§ 105‑164:  Repealed by Session Laws 1957, c.  1340, s. 5.

Part 1.  Title, Purpose and Definitions.

§ 105‑164.1.  Short title.

This Article shall be known as the "North Carolina Sales and Use Tax Act." (1957, c. 1340, s. 5; 1998‑98, s. 47.)

§ 105‑164.2.  Purpose.

The taxes herein imposed shall be in addition to all other license, privilege or excise taxes and the taxes levied by this Article are to provide revenue for the support of the public school system of this State and for other necessary uses and purposes of the government and State of North Carolina. (1957, c. 1340, s. 5.)

§ 105‑164.3.  Definitions.

The following definitions apply in this Article:

(1)       Analytical services. – Testing laboratories that are included in national industry 541380 of NAICS or medical laboratories that are included in national industry 621511 of NAICS.

(1a)     Ancillary service. – A service associated with or incidental to the provision of a telecommunications service. The term includes detailed communications billing, directory assistance, vertical service, and voice mail service. A vertical service is a service, such as call forwarding, caller ID, three‑way calling, and conference bridging, that allows a customer to identify a caller or manage multiple calls and call connections.

(1b)     Bundled transaction. – A retail sale of two or more distinct and identifiable products, at least one of which is taxable and one of which is exempt, for one nonitemized price. Products are not sold for one nonitemized price if an invoice or another sales document made available to the purchaser separately identifies the price of each product. A bundled transaction does not include the retail sale of any of the following:

a.         A product and any packaging item that accompanies the product and is exempt under G.S. 105‑164.13(23).

b.         A sale of two or more products whose combined price varies, or is negotiable, depending on the products the purchaser selects.

c.         A sale of a product accompanied by a transfer of another product with no additional consideration.

d.         A product and the delivery or installation of the product.

e.         A product and any service necessary to complete the sale.

(1d)     Business. – Includes any activity engaged in by any person or caused to be engaged in by him with the object of gain, profit, benefit or advantage, either direct or indirect. The term "business" shall not be construed in this Article to include occasional and isolated sales or transactions by a person who does not hold himself out as engaged in business.

(1f)     Cable service. – The one‑way transmission to subscribers of video programming or other programming service and any subscriber interaction required to select or use the service.

(2)       Candy. – A preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces that do not require refrigeration. The term does not include any preparation that contains flour.

(3)       Clothing. – All human wearing apparel suitable for general use including coats, jackets, hats, hosiery, scarves, and shoes.

(4)       Clothing accessories or equipment. – Incidental items worn on the person or in conjunction with clothing including jewelry, cosmetics, eyewear, wallets, and watches.

(4a)     Combined general rate. – The State's general rate of tax set in G.S. 105‑164.4(a) plus the sum of the rates of the local sales and use taxes authorized by Subchapter VIII of this Chapter for every county in this State.

(4b)     Computer. – An electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions.

(4c)     Computer software. – A set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.

(4d)     Computer supply. – An item that is considered a "school computer supply" under the Streamlined Agreement.

(5)       Consumer. – Means and includes every person storing, using or otherwise consuming in this State tangible personal property purchased or received from a retailer either within or without this State.

(5a),    (5b) Reserved for future codification purposes.

(5c)     Custom computer software. – Computer software that is not prewritten computer software. The term includes a user manual or other documentation that accompanies the sale of the software.

(5d)     Delivered electronically. – Delivered to the purchaser by means other than tangible storage media.

(6)       Delivery charges. – Charges imposed by the retailer for preparation and delivery of personal property or services to a location designated by the consumer.

(7)       Dietary supplement. – A product that is intended to supplement the diet of humans and is required to be labeled as a dietary supplement under federal law, identifiable by the "Supplement Facts" box found on the label.

(7a)     Direct mail. – Printed material delivered or distributed by the United States Postal Service or other delivery service to a mass audience or to addresses on a mailing list provided by the purchaser or at the direction of the purchaser when the cost of the items is not billed directly to the recipients. The term includes tangible personal property supplied directly or indirectly by the purchaser to the direct mail seller for inclusion in the package containing the printed material. The term does not include multiple items of printed material delivered to a single address.

(8)       Direct‑to‑home satellite service. – Programming transmitted or broadcast by satellite directly to the subscribers' premises without the use of ground equipment or distribution equipment, except equipment at the subscribers' premises or the uplink process to the satellite.

(8a)     Drug. – A compound, substance, or preparation or a component of one of these that meets any of the following descriptions and is not food, a dietary supplement, or an alcoholic beverage:

a.         Is recognized in the United States Pharmacopoeia, Homeopathic Pharmacopoeia of the United States, or National Formulary.

b.         Is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.

c.         Is intended to affect the structure or function of the body.

(8b)     Durable medical equipment. – Equipment that meets all of the conditions of this subdivision. The term includes repair and replacement parts for the equipment. The term does not include mobility enhancing equipment.

a.         Can withstand repeated use.

b.         Primarily and customarily used to serve a medical purpose.

c.         Generally not useful to a person in the absence of an illness or injury.

d.         Not worn in or on the body.

(8c)     Durable medical supplies. – Supplies related to use with durable medical equipment that are eligible to be covered under the Medicare or Medicaid program.

(8d)     Electronic. – Relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(8e)     Eligible Internet data center. – A facility that satisfies each of the following conditions:

a.         The facility is used primarily or is to be used primarily by a business engaged in "Internet service providers and Web search portals" industry 51811, as defined by NAICS.

b.         The facility is comprised of a structure or series of structures located or to be located on a single parcel of land or on contiguous parcels of land that are commonly owned or owned by affiliation with the operator of that facility.

c.         The facility is located or to be located in a county that was designated, at the time of application for the written determination required under sub‑subdivision d. of this subdivision, either an enterprise tier one, two, or three area or a development tier one or two area pursuant to G.S. 105‑129.3 or G.S. 143B‑437.08, regardless of any subsequent change in county enterprise or development tier status.

d.         The Secretary of Commerce has made a written determination that at least two hundred fifty million dollars ($250,000,000) in private funds has been or will be invested in real property or eligible business property, or a combination of both, at the facility within five years after the commencement of construction of the facility.

(8f)     Eligible railroad intermodal facility. – Defined in G.S. 105‑129.95.

(8g)     Energy Star qualified product. – A product that meets the energy efficient guidelines set by the United States Environmental Protection Agency and the United States Department of Energy and is authorized to carry the Energy Star label.

(9)       Engaged in business. – Maintaining, occupying or using permanently or temporarily, directly or indirectly, or through a subsidiary or agent, by whatever name called, any office, place of distribution, sales or sample room or place, warehouse or storage place, or other place of business, for the selling or delivering of tangible personal property for storage, use or consumption in this State, or permanently or temporarily, directly or through a subsidiary, having any representative, agent, salesman, canvasser or solicitor operating in this State in such selling or delivering, and the fact that any corporate retailer, agent or subsidiary engaged in business in this State may not be legally domesticated or qualified to do business in this State is immaterial. It also means maintaining in this State, either permanently or temporarily, directly or through a subsidiary, tangible personal property for the purpose of lease or rental. It also means making a mail order sale, as defined in this section, if one of the conditions listed in G.S. 105‑164.8(b) is met. It also means the direct shipment of wine to a purchaser in this State by a wine shipper permittee under G.S. 18B‑1001.1.

(10)     Food. – Substances that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. The substances may be in liquid, concentrated, solid, frozen, dried, or dehydrated form. The term does not include an alcoholic beverage, as defined in G.S. 105‑113.68, or a tobacco product, as defined in G.S. 105‑113.4.

(11)     Food sold through a vending machine. – Food dispensed from a machine or another mechanical device that accepts payment.

(12)     Gross sales. – The sum total of the sales price of all retail sales of tangible personal property and services.

(13)     Hub. – Either of the following:

a.         An interstate air courier's hub is the interstate air courier's principal airport within the State for sorting and distributing letters and packages and from which the interstate air courier has, or expects to have upon completion of construction, no less than 150 departures a month under normal operating conditions.

b.         An interstate passenger air carrier's hub is the airport in this State that meets both of the following conditions:

1.         The air carrier has allocated to the airport under G.S. 105‑338 more than sixty percent (60%) of its aircraft value apportioned to this State.

2.         The majority of the air carrier's passengers boarding at the airport are connecting from other airports rather than originating at that airport.

(14)     In this (the) State. – Within the exterior limits of the State of North Carolina and includes all territory within such limits owned by or ceded to the United States of America.

(14c)   Interstate air business. – An interstate air courier, an interstate freight air carrier, or an interstate passenger air carrier.

(15)     Interstate air courier. – A person whose primary business is the furnishing of air delivery of individually addressed letters and packages for compensation, in interstate commerce, except by the United States Postal Service.

(15b)   Interstate freight air carrier. – A person whose primary business is scheduled freight air transportation, as defined in the North American Industry Classification System adopted by the United States Office of Management and Budget, in interstate commerce.

(16)     Interstate passenger air carrier. – A person whose primary business is scheduled passenger air transportation, as defined in the North American Industry Classification System adopted by the United States Office of Management and Budget, in interstate commerce.

(17)     Lease or rental. – A transfer of possession or control of tangible personal property for a fixed or indeterminate term for consideration. The term does not include any of the following:

a.         A transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments.

b.         A transfer of possession or control of property under an agreement that requires the transfer of title upon completion of required payments and payment of an option price that does not exceed the greater of one hundred dollars ($100.00) or one percent (1%) of the total required payments.

c.         The providing of tangible personal property along with an operator for a fixed or indeterminate period of time if the operator is necessary for the equipment to perform as designed. For the purpose of this sub‑subdivision, an operator must do more than maintain, inspect, or set up the tangible personal property.

(17a)   Load and leave. – Delivery to the purchaser by use of a tangible storage media where the tangible storage media is not physically transferred to the purchaser.

(18)     Mail order sale. – A sale of tangible personal property, ordered by mail, telephone, computer link, or other similar method, to a purchaser who is in this State at the time the order is remitted, from a retailer who receives the order in another state and transports the property or causes it to be transported to a person in this State. It is presumed that a resident of this State who remits an order was in this State at the time the order was remitted.

(19)     Major recycling facility. – Defined in G.S. 105‑129.25.

(20)     Manufactured home. – A structure that is designed to be used as a dwelling and is manufactured in accordance with the specifications for manufactured homes issued by the United States Department of Housing and Urban Development.

a., b.    Repealed by Session Laws 2003‑400, s. 13, effective January 1, 2004, and applicable to sales of modular homes on and after that date.

(21)     Mobile telecommunications service. – A radio communication service carried on between mobile stations or receivers and land stations and by mobile stations communicating among themselves and includes all of the following:

a.         Both one‑way and two‑way radio communication services.

b.         A mobile service that provides a regularly interacting group of base, mobile, portable, and associated control and relay stations for private one‑way or two‑way land mobile radio communications by eligible users over designated areas of operation.

c.         Any service for which a federal license is required in a personal communications service.

(21a)   Mobility enhancing equipment. – Equipment that meets all of the conditions of this subdivision. The term includes repair and replacement parts for the equipment. The term does not include durable medical equipment.

a.         Primarily and customarily used to provide or increase the ability of an individual to move from one place to another.

b.         Appropriate for use either in a home or motor vehicle.

c.         Not generally used by a person with normal mobility.

d.         Not normally provided on a motor vehicle by a motor vehicle manufacturer.

(21b)   Modular home. – A factory‑built structure that is designed to be used as a dwelling, is manufactured in accordance with the specifications for modular homes under the North Carolina State Residential Building Code, and bears a seal or label issued by the Department of Insurance pursuant to G.S. 143‑139.1.

(21c)   Modular homebuilder. – A person who furnishes for consideration a modular home to a purchaser that will occupy the modular home. The purchaser can be a person that will lease or rent the unit as real property.

(22)     Moped. – A vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.

(23)     Motor vehicle. – A vehicle that is designed primarily for use upon the highways and is either self‑propelled or propelled by a self‑propelled vehicle, but does not include:

a.         A moped.

b.         Special mobile equipment.

c.         A tow dolly that is exempt from motor vehicle title and registration requirements under G.S. 20‑51(10) or (11).

d.         A farm tractor or other implement of husbandry.

e.         A manufactured home, a mobile office, or a mobile classroom.

f.          Road construction or road maintenance machinery or equipment.

(23a)   NAICS. – Defined in G.S. 105‑129.81.

(24)     Net taxable sales. – Means and includes the gross retail sales of the business of the retailer taxed under this Article after deducting exempt sales and nontaxable sales.

(25)     Nonresident retail or wholesale merchant. – A person who does not have a place of business in this State, is engaged in the business of acquiring, by purchase, consignment, or otherwise, tangible personal property and selling the property outside the State, and is registered for sales and use tax purposes in a taxing jurisdiction outside the State.

(25a)   Over‑the‑counter drug. – A drug that can be dispensed under federal law without a prescription and is required by 21 C.F.R. § 210.66 to have a label containing a "Drug Facts" panel and a statement of its active ingredients.

(26)     Person. – The same meaning as in G.S. 105‑228.90.

(26a)   Place of primary use. – The street address representative of where the use of a customer's telecommunications service primarily occurs. The street address must be the customer's residential street address or primary business street address. For mobile telecommunications service, the street address must be within the licensed service area of the service provider. If the customer who contracted with the telecommunications provider for the telecommunications service is not the end user of the service, the end user is considered the customer for the purpose of determining the place of primary use.

(27)     Prepaid telephone calling service. – Prepaid wireline calling service or prepaid wireless calling service.

(27a)   Prepaid wireless calling service. – A right that meets all of the following requirements:

a.         Authorizes the purchase of mobile telecommunications service, either exclusively or in conjunction with other services.

b.         Must be paid for in advance.

c.         Is sold in units or dollars whose number or dollar value declines with use and is known on a continuous basis.

(27b)   Prepaid wireline calling service. – A right that meets all of the following requirements:

a.         Authorizes the exclusive purchase of wireline telecommunications service.

b.         Must be paid for in advance.

c.         Enables the origination of calls by means of an access number, authorization code, or another similar means, regardless of whether the access number or authorization code is manually or electronically dialed.

d.         Is sold in units or dollars whose number or dollar value declines with use and is known on a continuous basis.

(28)     Prepared food. – Food that meets at least one of the conditions of this subdivision. Prepared food does not include food the retailer sliced, repackaged, or pasteurized but did not heat, mix, or sell with eating utensils.

a.         It is sold in a heated state or it is heated by the retailer.

b.         It consists of two or more foods mixed or combined by the retailer for sale as a single item. This sub‑subdivision does not include foods containing raw eggs, fish, meat, or poultry that require cooking by the consumer as recommended by the Food and Drug Administration to prevent food borne illnesses.

c.         It is sold with eating utensils provided by the retailer, such as plates, knives, forks, spoons, glasses, cups, napkins, and straws.

(29)     Prescription. – An order, formula, or recipe issued orally, in writing, electronically, or by another means of transmission by a physician, dentist, veterinarian, or another person licensed to prescribe drugs.

(29a)   Prewritten computer software. – Computer software, including prewritten upgrades, that is not designed and developed by the author or another creator to the specifications of a specific purchaser. The term includes software designed and developed by the author or another creator to the specifications of a specific purchaser when it is sold to a person other than the specific purchaser.

(30)     Production company. – A person engaged in the business of making original motion picture, television, or radio images for theatrical, commercial, advertising, or educational purposes.

(30a)   Professional motorsports racing team. – A racing team that satisfies all of the following conditions:

a.         The team is operated for profit.

b.         A majority of the revenues of the team is derived from sponsorship of the racing team and prize money.

c.         The team competes in at least sixty‑six percent (66%) of the races sponsored in a single season by a motorsports sanctioning body.

(30b)   Prosthetic device. – A replacement, corrective, or supporting device worn on or in the body that meets one of the conditions of this subdivision. The term includes repair and replacement parts for the device.

a.         Artificially replaces a missing portion of the body.

b.         Prevents or corrects a physical deformity or malfunction.

c.         Supports a weak or deformed portion of the body.

(31)     Protective equipment. – Items for human wear and designed as protection of the wearer against injury or disease or as protection against damage or injury of other persons or property but not suitable for general use including breathing masks, face shields, hard hats, and tool belts.

(32)     Purchase. – Acquired for a consideration whether

a.         The acquisition was effected by a transfer of title or possession, or both, or a license to use or consume;

b.         The transfer was absolute or conditional regardless of the means by which it was effected; and

c.         The consideration is a price or rental in money or by way of exchange or barter.

It shall also include the procuring of a retailer to erect, install or apply tangible personal property for use in this State.

(33)     Purchase price. – The term has the same meaning as the term "sales price" when applied to an item subject to use tax.

(34)     Retail sale or sale at retail. – The sale, lease, or rental for any purpose other than for resale, sublease, or subrent.

(35)     Retailer. – Means and includes every person engaged in the business of making sales of tangible personal property at retail, either within or without this State, or peddling the same or soliciting or taking orders for sales, whether for immediate or future delivery, for storage, use or consumption in this State and every manufacturer, producer or contractor engaged in business in this State and selling, delivering, erecting, installing or applying tangible personal property for use in this State notwithstanding that said property may be permanently affixed to a building or realty or other tangible personal property. "Retailer" also means a person who makes a mail order sale, as defined in this section, if one of the conditions listed in G.S. 105‑164.8(b) is met. Provided, however, that when in the opinion of the Secretary it is necessary for the efficient administration of this Article to regard any salesmen, solicitors, representatives, consignees, peddlers, truckers or canvassers as agents of the dealers, distributors, consignors, supervisors, employers or persons under whom they operate or from whom they obtain the tangible personal property sold by them regardless of whether they are making sales on their own behalf or on behalf of such dealers, distributors, consignors, supervisors, employers or persons, the Secretary may so regard them and may regard the dealers, distributors, consignors, supervisors, employers or persons as "retailers" for the purpose of this Article.

(36)     Sale or selling. – The transfer of title or possession of tangible personal property, conditional or otherwise, in any manner or by any means whatsoever, for a consideration paid or to be paid.

The term includes the fabrication of tangible personal property for consumers by persons engaged in business who furnish either directly or indirectly the materials used in the fabrication work. The term also includes the furnishing or preparing for a consideration of any tangible personal property consumed on the premises of the person furnishing or preparing the property or consumed at the place at which the property is furnished or prepared. The term also includes a transaction in which the possession of the property is transferred but the seller retains title or security for the payment of the consideration.

If a retailer engaged in the business of selling prepared food and drink for immediate or on‑premises consumption also gives prepared food or drink to its patrons or employees free of charge, for the purposes of this Article the property given away is considered sold along with the property sold. If a retailer gives an item of inventory to a customer free of charge on the condition that the customer purchase similar or related property, the item given away is considered sold along with the item sold. In all other cases, property given away or used by any retailer or wholesale merchant is not considered sold, whether or not the retailer or wholesale merchant recovers its cost of the property from sales of other property.

(37)     Sales price. – The total amount or consideration for which tangible personal property or services are sold, leased, or rented. The consideration may be in the form of cash, credit, property, or services. The sales price must be valued in money, regardless of whether it is received in money.

a.         The term includes all of the following:

1.         The retailer's cost of the property sold.

2.         The cost of materials used, labor or service costs, interest, losses, all costs of transportation to the retailer, all taxes imposed on the retailer, and any other expense of the retailer.

3.         Charges by the retailer for any services necessary to complete the sale.

4.         Delivery charges.

5.         Installation charges.

6.         Repealed by Session Laws 2007‑244, s. 1, effective October 1, 2007.

7.         Credit for trade‑in.

8.         Discounts that are reimbursable by a third party and can be determined at the time of sale through any of the following:

I.          Presentation by the consumer of a coupon or other documentation.

II.         Identification of the consumer as a member of a group eligible for a discount.

III.       The invoice the retailer gives the consumer.

b.         The term does not include any of the following:

1.         Discounts that are not reimbursable by a third party, are allowed by the retailer, and are taken by a consumer on a sale.

2.         Interest, financing, and carrying charges from credit extended on the sale, if the amount is separately stated on the invoice, bill of sale, or a similar document given to the consumer.

3.         Any taxes imposed directly on the consumer that are separately stated on the invoice, bill of sale, or similar document given to the consumer.

(37a)   Satellite digital audio radio service. – A radio communication service in which audio programming is digitally transmitted by satellite to an earth‑based receiver, whether directly or via a repeater station.

(37b)   School instructional material. – Defined in the Streamlined Agreement.

(37d)   School supply. – An item that is commonly used by a student in the course of study and is considered a "school supply" or "school art supply" under the Streamlined Agreement.

(38)     Secretary. – The Secretary of the North Carolina Department of Revenue.

(39)     Repealed by Session Laws 2002‑16, s. 3, effective August 1, 2002, and applicable to taxable services reflected on bills dated after August 1, 2002.

(40)     Soft drink. – A nonalcoholic beverage that contains natural or artificial sweeteners. The term does not include beverages that contain one or more of the following:

a.         Milk or milk products.

b.         Soy, rice, or similar milk substitutes.

c.         More than fifty percent (50%) vegetable or fruit juice.

(41)     Special mobile equipment. – Any of the following:

a.         A vehicle that has a permanently attached crane, mill, well‑boring apparatus, ditch‑digging apparatus, air compressor, electric welder, feed mixer, grinder, or other similar apparatus is driven on the highway only to get to and from a nonhighway job and is not designed or used primarily for the transportation of persons or property.

b.         A vehicle that has permanently attached special equipment and is used only for parade purposes.

c.         A vehicle that is privately owned, has permanently attached fire‑fighting equipment, and is used only for fire‑fighting purposes.

d.         A vehicle that has permanently attached playground equipment and is used only for playground purposes.

(42)     Sport or recreational equipment. – Items designed for human use and worn in conjunction with an athletic or recreational activity that are not suitable for general use including ballet shoes, cleated athletic shoes, shin guards, and ski boots.

(43)     State agency. – A unit of the executive, legislative, or judicial branch of State government, such as a department, a commission, a board, a council, or The University of North Carolina. The term does not include a local board of education.

(44)     Storage. – Means and includes any keeping or retention in this State for any purpose by the purchaser thereof, except sale in the regular course of business, of tangible personal property purchased from a retailer.

(45)     Storage and Use; Exclusion. – "Storage" and "use" do not include the keeping, retaining or exercising of any right or power over tangible personal property by the purchaser thereof for the original purpose of subsequently transporting it outside the State for use by said purchaser thereafter solely outside the State and which purpose is consummated, or for the purpose of being processed, fabricated or manufactured into, attached to or incorporated into, other tangible personal property to be transported outside the State and thereafter used by the purchaser thereof solely outside the State.

(45a)   Streamlined Agreement. – The Streamlined Sales and Use Tax Agreement as amended as of June 23, 2007.

(46)     Tangible personal property. – Personal property that may be seen, weighed, measured, felt, or touched or is in any other manner perceptible to the senses. The term includes electricity, water, gas, steam, and prewritten computer software.

(47)     Taxpayer. – Any person liable for taxes under this Article.

(48)     Telecommunications service. – The electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. The term includes any transmission, conveyance, or routing in which a computer processing application is used to act on the form, code, or protocol of the content for purposes of the transmission, conveyance, or routing, regardless of whether it is referred to as voice‑over Internet protocol or the Federal Communications Commission classifies it as enhanced or value added. The term does not include the following:

a.         Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a customer whose primary purpose for using the service is to obtain the processed data or information.

b.         The sale, installation, maintenance, or repair of tangible personal property.

c.         Directory advertising and other advertising.

d.         Billing and collection services provided to a third party.

e.         Internet access service.

f.          Radio and television audio and video programming service, regardless of the medium of delivery, and the transmission, conveyance, or routing of the service by the programming service provider. The term includes cable service and audio and video programming service provided by a mobile telecommunications service provider.

g.         Ancillary service.

h.         A digital product delivered electronically, including software, music, a ring tone, video, and reading material.

(49)     Use. – The exercise of any right, power, or dominion whatsoever over tangible personal property or a service by the purchaser of the property or service. The term includes withdrawal from storage, distribution, installation, affixation to real or personal property, and exhaustion or consumption of the tangible personal property or service by the owner or purchaser. The term does not include the sale of tangible personal property or a service in the regular course of business.

(50)     Use tax. – The tax imposed by Part 2 of this Article.

(50c)   Video programming. – Programming provided by, or generally considered comparable to programming provided by, a television broadcast station, regardless of the method of delivery.

(51)     Wholesale merchant. – Every person who engages in the business of buying or manufacturing any tangible personal property and selling same to registered retailers, wholesalers and nonresident retail or wholesale merchants for resale. It shall also include persons making sales of tangible personal property which are defined herein as wholesale sales. For the purposes of this Article any person, firm, corporation, estate or trust engaged in the business of manufacturing, producing, processing or blending any articles of commerce and maintaining a store or stores, warehouse or warehouses, or any other place or places, separate and apart from the place of manufacture or production, for the sale or distribution of its products (other than bakery products) to other manufacturers or producers, wholesale or retail merchants, for the purpose of resale shall be deemed a "wholesale merchant."

(52)     Wholesale sale. – A sale of tangible personal property by a wholesale merchant to a manufacturer, or registered jobber or dealer, or registered wholesale or retail merchant, for the purpose of resale but does not include a sale to users or consumers not for resale.  (1957, c. 1340, s. 5; 1959, c. 1259, s. 5; 1961, c. 1213, s. 1; 1967, c. 1110, s. 6; 1973, c. 476, s. 193; c. 1287, s. 8; 1975, c. 104; c. 275, s. 6; 1979, c. 48, s. 2; c. 71; c. 801, s. 72; 1983, c. 713, ss. 87, 88; 1983 (Reg. Sess., 1984), c. 1097, ss. 4, 5; 1985, c. 23; 1987, c. 27; c. 557, s. 3.1; c. 854, ss. 2, 3; 1987 (Reg. Sess., 1988), c. 1044, s. 3; c. 1096, ss. 1‑3; 1989, c. 692, s. 3.2; 1989 (Reg. Sess., 1990), c. 813, s. 13; 1991, c. 45, s. 15; c. 79, ss. 1, 3; c. 689, s. 190.1(a); 1991 (Reg. Sess., 1992), c. 949, s. 3; 1993, c. 354, s. 16; c. 484, s. 1; c. 507, s. 1; 1995 (Reg. Sess., 1996), c. 649, s. 2; 1996, 2nd Ex. Sess., c. 14, ss. 13, 14; 1997‑6, s. 7; 1997‑370, s. 1; 1997‑426, s. 4; 1998‑22, s. 4; 1998‑55, ss. 7, 13; 1998‑98, ss. 13.1(a), 106; 1999‑337, s. 28(a), (b); 1999‑360, s. 6(a)‑(c); 1999‑438, s. 4; 2000‑153, s. 4; 2000‑173, s. 9; 2001‑347, ss. 2.1‑2.7; 2001‑414, s. 14; 2001‑424, s. 34.17(b); 2001‑430, ss. 1, 2; 2001‑476, s. 18(a); 2001‑489, s. 3(a); 2002‑16, ss. 1, 2, 3; 2002‑170, s. 6; 2003‑284, s. 45.2; 2003‑400, ss. 13, 14; 2003‑402, s. 12; 2004‑124, s. 32B.3; 2004‑170, ss. 18, 19; 2005‑276, ss. 33.2, 33.3; 2006‑33, s. 1; 2006‑66, ss. 24.10(a), 24.17(a); 2006‑151, s. 2; 2006‑162, s. 5(a); 2006‑168, ss. 4.1, 4.3; 2006‑252, ss. 2.25(a), (a1), (c), 2.26; 2007‑244, s. 1; 2007‑323, ss. 31.14(a), 31.20(a), 31.23(b); 2008‑107, s. 28.12(a).)

Part 2. Taxes Levied.

§ 105‑164.4.  Tax imposed on retailers.

(a)       (Effective until October 1, 2008 – see notes) A privilege tax is imposed on a retailer at the following percentage rates of the retailer's net taxable sales or gross receipts, as appropriate. The general rate of tax is four and one‑quarter percent (4.25%).

(a)       (Effective October 1, 2008 until October 1, 2009 – see notes) A privilege tax is imposed on a retailer at the following percentage rates of the retailer's net taxable sales or gross receipts, as appropriate. The general rate of tax is four and one‑half percent (4.5%).

(a)       (Effective October 1, 2009 – see notes) A privilege tax is imposed on a retailer at the following percentage rates of the retailer's net taxable sales or gross receipts, as appropriate. The general rate of tax is four and three‑quarters percent (4.75%).

(1)       The general rate of tax applies to the sales price of each item or article of tangible personal property that is sold at retail and is not subject to tax under another subdivision in this section.

(1a)     The rate of two percent (2%) applies to the sales price of each manufactured home sold at retail, including all accessories attached to the manufactured home when it is delivered to the purchaser. The maximum tax is three hundred dollars ($300.00) per article. Each section of a manufactured home that is transported separately to the site where it is to be erected is a separate article.

(1b)     The rate of three percent (3%) applies to the sales price of each aircraft or boat sold at retail, including all accessories attached to the item when it is delivered to the purchaser. The maximum tax is one thousand five hundred dollars ($1,500) per article.

(1c),(1d) and (1e)  Repealed by Session Laws 2005‑276, s. 33.4(b), effective January 1, 2006.

(1f)     The rate of two and eighty‑three‑hundredths percent (2.83%) applies to the sales price of electricity that is measured by a separate meter or another separate device and sold to a commercial laundry or to a pressing and dry‑cleaning establishment for use in machinery used in the direct performance of the laundering or the pressing and cleaning service.

a.         Repealed by Session Laws 2007‑397, s. 10(b), effective October 1, 2007, and applicable to sales occurring on or after that date.

b.         Repealed by Session Laws 2006‑66, s. 24.19(a), effective July 1, 2007, and applicable to sales made on or after that date.

c.         Repealed by Session Laws 2007‑397, s. 10(b), effective October 1, 2007, and applicable to sales occurring on or after that date.

(1g)     Repealed by Session Laws 2004‑110, s. 6.1, effective October 1, 2004, and applicable to sales of electricity made on or after that date.

(1h)     (Expires for sales made on or after October 1, 2007) The rate of seventeen‑hundredths percent (0.17%) applies to the sales price of electricity sold to an aluminum smelting facility for use in connection with the operation of that facility and measured by a separate meter or measuring device.

(1i)      Repealed by Session Laws 2007‑397, s. 10(a), effective October 1, 2007, and applicable to sales occurring on or after that date.

(1j)      (Effective until July 1, 2008 – see notes) The rate of one and eight‑tenths percent (1.8%) applies to the sales price of electricity described in this subdivision and measured by a separate meter or another separate device:

a.         Sales of electricity to manufacturing industries and manufacturing plants for use in connection with the operation of the industries and plants.

b.         Sales of electricity to farmers to be used by them for any farming purposes other than preparing food, heating dwellings, and other household purposes.

(1j)      (Effective July 1, 2008 until July 1, 2009 – see notes) The rate of one and four‑tenths percent (1.4%) applies to the sales price of electricity described in this subdivision and measured by a separate meter or another separate device:

a.         Sales of electricity to manufacturing industries and manufacturing plants for use in connection with the operation of the industries and plants.

b.         Sales of electricity to farmers to be used by them for any farming purposes other than preparing food, heating dwellings, and other household purposes.

(1j)      (Effective July 1, 2009 until July 1, 2010 – see notes) The rate of eight‑tenths percent (.8%) applies to the sales price of electricity described in this subdivision and measured by a separate meter or another separate device:

a.         Sales of electricity to manufacturing industries and manufacturing plants for use in connection with the operation of the industries and plants.

b.         Sales of electricity to farmers to be used by them for any farming purposes other than preparing food, heating dwellings, and other household purposes.

(2)       The applicable percentage rate applies to the gross receipts derived from the lease or rental of tangible personal property by a person who is engaged in the business of leasing or renting tangible personal property, or is a retailer and leases or rents property of the type sold by the retailer. The applicable percentage rate is the rate and the maximum tax, if any, that applies to a sale of the property that is leased or rented. A person who leases or rents property shall also collect the tax imposed by this section on the separate retail sale of the property.

(3)       Operators of hotels, motels, tourist homes, tourist camps, and similar type businesses and persons who rent private residences and cottages to transients are considered retailers under this Article. A tax at the general rate of tax is levied on the gross receipts derived by these retailers from the rental of any rooms, lodgings, or accommodations furnished to transients for a consideration. This tax does not apply to any private residence or cottage that is rented for less than 15 days in a calendar year or to any room, lodging, or accommodation supplied to the same person for a period of 90 or more continuous days.

As used in this subdivision, the term "persons who rent to transients" means (i) owners of private residences and cottages who rent to transients and (ii) rental agents, including "real estate brokers" as defined in G.S. 93A‑2, who rent private residences and cottages to transients on behalf of the owners. If a rental agent is liable for the tax imposed by this subdivision, the owner is not liable.

(4)       Every person engaged in the business of operating a dry cleaning, pressing, or hat‑blocking establishment, a laundry, or any similar business, engaged in the business of renting clean linen or towels or wearing apparel, or any similar business, or engaged in the business of soliciting cleaning, pressing, hat blocking, laundering or linen rental business for any of these businesses, is considered a retailer under this Article. A tax at the general rate of tax is levied on the gross receipts derived by these retailers from services rendered in engaging in any of the occupations or businesses named in this subdivision. The tax imposed by this subdivision does not apply to receipts derived from coin, token, or card‑operated washing machines, extractors, and dryers. The tax imposed by this subdivision does not apply to gross receipts derived from services performed for resale by a retailer that pays the tax on the total gross receipts derived from the services.

(4a)     The rate of three percent (3%) applies to the gross receipts derived from sales of electricity, other than sales of electricity subject to tax under another subdivision in this section. A person who sells electricity is considered a retailer under this Article.

(4b)     A person who sells tangible personal property at a specialty market, other than the person's own household personal property, is considered a retailer under this Article. A tax at the general rate of tax is levied on the sales price of each article sold by the retailer at the specialty market. The term "specialty market" has the same meaning as defined in G.S. 66‑250.

(4c)     The combined general rate applies to the gross receipts derived from providing telecommunications service and ancillary service. A person who provides telecommunications service or ancillary service is considered a retailer under this Article. These services are taxed in accordance with G.S. 105‑164.4C.

(4d)     The sale or recharge of prepaid telephone calling service is taxable at the general rate of tax. The tax applies regardless of whether tangible personal property, such as a card or a telephone, is transferred. The tax applies to a service that is sold in conjunction with prepaid wireless calling service. Prepaid telephone calling service is taxable at the point of sale instead of at the point of use and is sourced in accordance with G.S. 105‑164.4B. Prepaid telephone calling service taxed under this subdivision is not subject to tax as a telecommunications service.

(5)       Repealed by Session Laws 1998‑212, s. 29A.1(a), effective May 1, 1999.

(6)       The combined general rate applies to the gross receipts derived from providing video programming to a subscriber in this State. A cable service provider, a direct‑to‑home satellite service provider, and any other person engaged in the business of providing video programming is considered a retailer under this Article.

(6a)     The general rate applies to the gross receipts derived from providing satellite digital audio radio service. For services received by a mobile or portable station, the service is sourced to the subscriber's business or home address. A person engaged in the business of providing satellite digital audio radio service is a retailer under this Article.

(7)       The combined general rate applies to the sales price of spirituous liquor other than mixed beverages. As used in this subdivision, the terms "spirituous liquor" and "mixed beverage" have the meanings provided in G.S. 18B‑101.

(8)       The rate of two and one‑half percent (2.5%) applies to the sales price of each modular home sold at retail, including all accessories attached to the modular home when it is delivered to the purchaser. The sale of a modular home to a modular homebuilder is considered a retail sale. A person who sells a modular home at retail is allowed a credit against the tax imposed by this subdivision for sales or use tax paid to another state on tangible personal property incorporated in the modular home. The retail sale of a modular home occurs when a modular home manufacturer sells a modular home to a modular homebuilder or directly to the end user of the modular home.

(b)       The tax levied in this section shall be collected from the retailer and paid by him at the time and in the manner as hereinafter provided. Provided, however, that any person engaging or continuing in business as a retailer shall pay the tax required on the net taxable sales of such business at the rates specified when proper books are kept showing separately the gross proceeds of taxable and nontaxable sales of tangible personal property in such form as may be accurately and conveniently checked by the Secretary or his duly authorized agent. If such records are not kept separately the tax shall be paid as a retailer on the gross sales of business and the exemptions and exclusions provided by this Article shall not be allowed. The tax levied in this section is in addition to all other taxes whether levied in the form of excise, license or privilege or other taxes.

(c)       Certificate of Registration. – Before a person may engage in business as a retailer or a wholesale merchant, the person must obtain a certificate of registration from the Department in accordance with G.S. 105‑164.29. (1957, c. 1340, s. 5; 1959, c. 1259, s. 5; 1961, c. 826, s. 2; 1963, c. 1169, ss. 3, 11; 1967, c. 1110, s. 6; c. 1116; 1969, c. 1075, s. 5; 1971, c. 887, s. 1; 1973, c. 476, s. 193; c. 1287, s. 8; 1975, c. 752; 1977, c. 903; 1977, 2nd Sess., c. 1218; 1979, c. 17, s. 1; c. 22; c. 48, s. 1; c. 527, s. 1; c. 801, s. 73; 1981, c. 984, ss. 1, 2; 1981 (Reg. Sess., 1982), cc. 1207, 1273; 1983, c. 510; c. 713, ss. 89, 93; c. 805, ss. 1, 2; 1983 (Reg. Sess., 1984), c. 1065, ss. 1, 2, 4; c. 1097, ss. 6, 13; 1985, c. 704; 1985 (Reg. Sess., 1986), c. 925; c. 1005; 1987, c. 557, ss. 4, 5; c. 800, ss. 2, 3; c. 854, s. 1; 1987 (Reg. Sess., 1988), c. 1044, s. 4; 1989, c. 692, ss. 3.1, 3.3, 8.4(8); c. 770, s. 74.4; 1989 (Reg. Sess., 1990), c. 813, ss. 14, 15; 1991, c. 598, s. 5; c. 689, s. 311; c. 690, s. 1; 1993, c. 372, s. 1; c. 484, s. 2; 1995, c. 17, s. 6; c. 477, s. 1; 1996, 2nd Ex. Sess., c. 13, ss. 1.1, 9.1, 9.2; 1997‑475, s. 1.1; 1998‑22, s. 5; 1998‑55, ss. 8, 14; 1998‑98, ss. 13.2, 48(a), (b); 1998‑121, ss. 3, 5; 1998‑197, s. 1; 1998‑212, s. 29A.1(a); 1999‑337, ss. 29, 30; 1999‑360, s. 3(a), (b); 1999‑438, s. 1; 2000‑140, s. 67(a); 2001‑424, ss. 34.13(a), 34.17(a), 34.23(b), 34.25(a); 2001‑430, ss. 3, 4, 5; 2001‑476, ss. 17(b)‑(d), (f); 2001‑487, ss. 67(b), 122(a)‑(c); 2002‑16, s. 4; 2003‑284, s. 38.1; 2003‑400, s. 15; 2004‑110, ss. 6.1, 6.2, 6.3; 2005‑144, s. 9.1; 2005‑276, ss. 33.1, 33.4(a), 33.4(b); 2006‑33, ss. 2, 11; 2006‑66, ss. 24.1(a), (b), (c), 24.19(a), (b); 2006‑151, s. 3; 2007‑145, s. 9(a); 2007‑323, ss. 31.2(a), (b), 31.16.3(h), 31.16.4(g); 2007‑397, ss. 10(a)‑(f).)

§ 105‑164.4A: Repealed by Session Laws 2005‑276, s. 33.5, effective January 1, 2006.

§ 105‑164.4B.  Sourcing principles.

(a)       General Principles. – The following principles apply in determining where to source the sale of a product. These principles apply regardless of the nature of the product.

(1)       Over‑the‑counter. – When a purchaser receives a product at a business location of the seller, the sale is sourced to that business location.

(2)       Delivery to specified address. – When a purchaser receives a product at a location specified by the purchaser and the location is not a business location of the seller, the sale is sourced to the location where the purchaser receives the product.

(3)       Delivery address unknown. – When a seller of a product does not know the address where a product is received, the sale is sourced to the first address or location listed in this subdivision that is known to the seller:

a.         The business or home address of the purchaser.

b.         The billing address of the purchaser or, if the product is prepaid wireless calling service, the location associated with the mobile telephone number.

c.         The address from which tangible personal property was shipped or from which a service was provided.

(b)       Periodic Rental Payments. – When a lease or rental agreement requires recurring periodic payments, the payments are sourced as follows:

(1)       For leased or rented property, the first payment is sourced in accordance with the principles set out in subsection (a) of this section and each subsequent payment is sourced to the primary location of the leased or rented property for the period covered by the payment. This subdivision applies to all property except a motor vehicle, an aircraft, transportation equipment, and a utility company railway car.

(2)       For leased or rented property that is a motor vehicle or an aircraft but is not transportation equipment, all payments are sourced to the primary location of the leased or rented property for the period covered by the payment.

(3)       For leased or rented property that is transportation equipment, all payments are sourced in accordance with the principles set out in subsection (a) of this section.

(4)       For a railway car that is leased or rented by a utility company and would be transportation equipment if it were used in interstate commerce, all payments are sourced in accordance with the principles set out in subsection (a) of this section.

(c)       Transportation Equipment Defined. – As used in the section, the term "transportation equipment" means any of the following used to carry persons or property in interstate commerce: a locomotive, a railway car, a commercial motor vehicle as defined in G.S. 20‑4.01, or an aircraft. The term includes a container designed for use on the equipment and a component part of the equipment.

(d)       Exceptions. – This section does not apply to the following:

(1)       Telecommunications services. – Telecommunications services are sourced in accordance with G.S. 105‑164.4C.

(2)       Direct mail. – Direct mail that meets one of the conditions of this subdivision is sourced to the location where the property is delivered. In all other cases, direct mail is sourced in accordance with the principles set out in subdivision (a)(3) of this section.

a.         Direct mail purchased pursuant to a direct pay permit.

b.         When the purchaser provides the seller with information to show the jurisdictions to which the direct mail is to be delivered.  (2001‑347, s. 2.9; 2002‑16, s. 5; 2003‑284, s. 45.3; 2004‑170, s. 20; 2006‑33, s. 3; 2006‑66, s. 24.13(a); 2008‑187, s. 42.)

§ 105‑164.4C.  Telecommunications service and ancillary service.

(a)       General. – The gross receipts derived from providing telecommunications service or ancillary service in this State are taxed at the rate set in G.S. 105‑164.4(a)(4c). Telecommunications service is provided in this State if the service is sourced to this State under the sourcing principles set out in subsections (a1) and (a2) of this section. Ancillary service is provided in this State if the telecommunications service to which it is ancillary is provided in this State. The definitions and provisions of the federal Mobile Telecommunications Sourcing Act apply to the sourcing and taxation of mobile telecommunications services.

(a1)     General Sourcing Principles. – The following general sourcing principles apply to telecommunications services. If a service falls within one of the exceptions set out in subsection (a2) of this section, the service is sourced in accordance with the exception instead of the general principle.

(1)       Flat rate. – A telecommunications service that is not sold on a call‑by‑call basis is sourced to this State if the place of primary use is in this State.

(2)       General call‑by‑call. – A telecommunications service that is sold on a call‑by‑call basis and is not a postpaid calling service is sourced to this State in the following circumstances:

a.         The call both originates and terminates in this State.

b.         The call either originates or terminates in this State and the telecommunications equipment from which the call originates or terminates and to which the call is charged is located in this State. This applies regardless of where the call is billed or paid.

(3)       Postpaid. – A postpaid calling service is sourced to the origination point of the telecommunications signal as first identified by either the seller's telecommunications system or, if the system used to transport the signal is not the seller's system, by information the seller receives from its service provider.

(a2)     Sourcing Exceptions. – The following telecommunications services and products are sourced in accordance with the principles set out in this subsection:

(1)       Mobile. – Mobile telecommunications service is sourced to the place of primary use, unless the service is prepaid wireless calling service or is air‑to‑ground radiotelephone service. Air‑to‑ground radiotelephone service is a postpaid calling service that is offered by an aircraft common carrier to passengers on its aircraft and enables a telephone call to be made from the aircraft. The sourcing principle in this subdivision applies to a service provided as an adjunct to mobile telecommunications service if the charge for the service is included within the term "charges for mobile telecommunications services" under the federal Mobile Telecommunications Sourcing Act.

(2)       Prepaid. – Prepaid telephone calling service is sourced in accordance with G.S. 105‑164.4B.

(3)       Private. – Private telecommunications service is sourced in accordance with subsection (e) of this section.

(b)       Repealed by Session Laws 2006‑33, s. 4, effective January 1, 2007.

(c)       (1)‑(10) Repealed by Session Laws 2006‑33, s. 4, effective January 1, 2007.

(11)     Repealed by Session Laws 2005‑276, s. 33.7, effective October 1, 2005.

(12)‑(16) Repealed by Session Laws 2006‑33, s. 4, effective January 1, 2007.

(d)       Recodified as G.S. 105‑164.4D by Session Laws 2006‑151, s. 4, effective January 1, 2007.

(e)       Private Line. – The gross receipts derived from private telecommunications service are sourced as follows:

(1)       If all the customer's channel termination points are located in this State, the service is sourced to this State.

(2)       If all the customer's channel termination points are not located in this State and the service is billed on the basis of channel termination points, the charge for each channel termination point located in this State is sourced to this State.

(3)       If all the customer's channel termination points are not located in this State and the service is billed on the basis of channel mileage, the following applies:

a.         A charge for a channel segment between two channel termination points located in this State is sourced to this State.

b.         Fifty percent (50%) of a charge for a channel segment between a channel termination point located in this State and a channel termination point located in another state is sourced to this State.

(4)       If all the customer's channel termination points are not located in this State and the service is not billed on the basis of channel termination points or channel mileage, a percentage of the charge for the service is sourced to this State. The percentage is determined by dividing the number of channel termination points in this State by the total number of channel termination points.

(f)        Call Center Cap. The gross receipts tax on telecommunications service that originates outside this State, terminates in this State, and is provided to a call center that has a direct pay permit issued by the Department under G.S. 105‑164.27A may not exceed fifty thousand dollars ($50,000) a calendar year. This cap applies separately to each legal entity.

(g)       Credit. – A taxpayer who pays a tax legally imposed by another state on a telecommunications service taxable under this section is allowed a credit against the tax imposed in this section.

(h)       Definitions. – The following definitions apply in this section:

(1)       Ancillary service. – Defined in G.S. 105‑164.3.

(1a)     Call‑by‑call basis. – A method of charging for a telecommunications service whereby the price of the service is measured by individual calls.

(2)       Call center. – Defined in G.S. 105‑164.27A.

(3)       Mobile telecommunications service. – Defined in G.S. 105‑164.3.

(4)       Place of primary use. – Defined in G.S. 105‑164.3.

(5)       Postpaid calling service. – A telecommunications service that is charged on a call‑by‑call basis and is obtained by making payment at the time of the call either through the use of a credit or payment mechanism, such as a bank card, travel card, credit card, or debit card, or by charging the call to a telephone number that is not associated with the origination or termination of the telecommunications service. A postpaid calling service includes a service that meets all the requirements of a prepaid wireline telephone calling service, except the exclusive use requirement.

(6)       Prepaid telephone calling service. – Defined in G.S. 105‑164.3.

(7)       Private telecommunications service. – Telecommunications service that entitles a subscriber of the service to exclusive or priority use of a communications channel or group of channels.

(8)       Telecommunications service. – Defined in G.S. 105‑164.3. (2001‑430, s. 6; 2001‑487, ss. 67(a), (c), 69(b); 2002‑16, s. 10; 2002‑16, ss. 6, 7, 8, 9, 11, 14; 2003‑416, s. 16(a); 2005‑276, ss. 33.6, 33.7; 2006‑33, s. 4; 2006‑151, s. 4.)

§ 105‑164.4D.  Bundled transactions.

(a)       Tax Application. – Tax applies to the sales price of a bundled transaction unless one of the following applies:

(1)       Fifty percent (50%) test. – All of the products in the bundle are tangible personal property, the bundle includes one or more of the exempt products listed in this subdivision, and the price of the taxable products in the bundle does not exceed fifty percent (50%) of the price of the bundle:

a.         Food exempt under G.S. 105‑164.13B.

b.         A drug exempt under G.S. 105‑164.13(13).

c.         Medical devices, equipment, or supplies exempt under G.S. 105‑164.13(12).

(2)       Allocation. – The bundle includes a service, and the retailer determines an allocated price for each product in the bundle based on a reasonable allocation of revenue that is supported by the retailer's business records kept in the ordinary course of business. In this circumstance, tax applies to the allocated price of each taxable product in the bundle.

(3)       Ten percent (10%) test. – The price of the taxable products in the bundle does not exceed ten percent (10%) of the price of the bundle, and no other subdivision in this subsection applies.

(b)       Determining Threshold. – A retailer of a bundled transaction subject to this section may use either the retailer's cost price or the retailer's sales price to determine if the transaction meets the fifty percent (50%) test or the ten percent (10%) test set out in subdivisions (a)(1) and (a)(3) of this section. A retailer may not use a combination of cost price and sales price to make this determination. If a bundled transaction subject to subdivision (a)(3) of this section includes a service contract, the retailer must use the full term of the contract in determining whether the transaction meets the threshold set in the subdivision. (2006‑151, ss. 4, 5; 2007‑244, s. 2.)

§ 105‑164.5:  Repealed by Session Laws 1998‑121, s. 2, as amended by Session Laws 1998-217, s. 59.

§ 105‑164.5A: Repealed by Session Laws 1961, c.  1213, s. 3.

§ 105‑164.6.  Complementary use tax.

(a)       Tax. – An excise tax at the applicable rate set in G.S. 105‑164.4 is imposed on the products listed below. The applicable rate is the rate and maximum tax, if any, that would apply to the sale of the product. A product is subject to tax under this section only if it is subject to tax under G.S. 105‑164.4.

(1)       Tangible personal property purchased inside or outside this State for storage, use, or consumption in this State. This subdivision includes property that becomes part of a building or another structure.

(2)       Tangible personal property leased or rented inside or outside this State for storage, use, or consumption in this State.

(3)       Services sourced to this State.

(b)       Liability. – The tax imposed by this section is payable by the person who purchases, leases, or rents tangible personal property or who purchases a service. If the property purchased becomes a part of a building or other structure in the State and the purchaser is a contractor or subcontractor, the contractor, the subcontractor, and the owner of the building are jointly and severally liable for the tax. The liability of a contractor, a subcontractor, or an owner who did not purchase the property is satisfied by receipt of an affidavit from the purchaser certifying that the tax has been paid.

(c)       Credit. – A credit is allowed against the tax imposed by this section for the following:

(1)       The amount of sales or use tax paid on the item to this State. Payment of sales or use tax to this State on an item by a retailer extinguishes the liability of a purchaser for the tax imposed under this section.

(2)       The amount of sales or use tax paid on the item to another state. If the amount of tax paid to the other state is less than the amount of tax imposed by this section, the difference is payable to this State. The credit allowed by this subdivision does not apply to tax paid to a state that does not grant a similar credit for sales or use taxes paid in North Carolina.

(d),      (e)  Repealed by Session Laws 2005‑276, s. 33.8, effective October 1, 2005.

(f)        Registration. – Before a person may engage in business in this State selling or delivering tangible personal property for storage, use, or consumption in this State, the person must obtain a certificate of registration from the Department. To obtain a certificate of registration, a person must register with the Department.

The holder of the certificate of registration must pay the tax levied under this Article. A certificate of registration is valid unless it is revoked for failure to comply with the provisions of this Article or becomes void. A certificate issued to a retailer becomes void if, for a period of 18 months, the retailer files no returns or files returns showing no sales.

(g)       Repealed by Session Laws 1995, c. 7, s. 1. (1957, c. 1340, s. 5; 1959, c. 1259, s. 5; 1961, c. 826, s. 2; 1967, c. 1110, s. 6; 1973, c. 476, s. 193; 1979, c. 17, s. 2; c. 48, ss. 3, 4; c. 179, s. 3; c. 527, s. 2; 1979, 2nd Sess., c. 1100, s. 1; c. 1175; 1981, cc. 18, 65; 1983, c. 713, s. 90; 1983 (Reg. Sess., 1984), c. 1065, s. 3; 1989, c. 692, s. 3.4; 1991, c. 689, s. 312; c. 690, s. 3; 1995, c. 7, s. 1; c. 17, s. 7; 1998‑121, s. 4; 1999‑438, s. 1.1; 2001‑414, s. 15; 2003‑416, ss. 17, 24(a); 2005‑276, s. 33.8; 2006‑162, s. 6.)

§ 105‑164.6A.  Voluntary collection of use tax by sellers.

(a)       Voluntary Collection Agreements. – The Secretary may enter into agreements with sellers pursuant to which the seller agrees to collect and remit on behalf of its customers State and local use taxes due on items of tangible personal property the seller sells. For the purpose of this section, a seller is a person who is engaged in the business of selling tangible personal property for use in this State and who does not have sufficient nexus with this State to be required to collect use tax on the sales.

(b)       Mandatory Provisions. – The agreements must contain the following provisions:

(1)       The seller is not liable for use tax not paid to it by a customer.

(2)       A customer's payment of a use tax to the seller relieves the customer of liability for the use tax.

(3)       The seller must remit all use taxes it collects from customers on or before the due date specified in the agreement, which may not be later than 31 days after the end of a quarter or other collection period. The collection period cannot be more often than annually if the seller's State and local tax collections are less than one thousand dollars ($1,000) in a calendar year.

(4)       A seller who fails to remit use taxes collected on behalf of its customers by the due date specified in the agreement is subject to the interest and penalties provided in Article 9 of this Chapter with respect to the taxes to the same extent as if the seller were a retailer and were required to collect use taxes under this Article.

(c)       Optional Provisions. – The agreements may contain the following provisions:

(1)       The seller will collect the use tax only on items that are subject to the general rate of tax.

(2)       The seller will collect local use taxes only to the extent they are at the same rate in every unit of local government in the State.

(3)       The seller will remit the tax and file reports in the form prescribed by the Secretary.

(4)       Other provisions establishing the types of transactions on which the seller will collect tax and prescribing administrative procedures and requirements. (1996, 2nd Ex. Sess., c. 14, s. 11; 2000‑120, s. 4; 2003‑284, s. 45.4.)

§ 105‑164.7.  Sales tax part of purchase price.

Every retailer subject to the tax levied in G.S. 105‑164.4 shall at the time of selling or delivering or taking an order for the sale or delivery of taxable tangible personal property or a taxable service, or collecting the sales price, add to the sales price the amount of tax due. The tax constitutes a part of the purchase price, is a debt from the purchaser to the retailer until paid, and is recoverable at law in the same manner as other debts. The tax must be stated and charged separately from the sales price, shown separately on the retailer's sales records, and paid by the purchaser to the retailer as trustee for and on account of the State. The retailer is liable for the collection of the tax and for its payment to the Secretary. The retailer's failure to charge the tax to or to collect the tax from the purchaser does not affect this liability. It is the intent of this Article that the tax be added to the sales price of tangible personal property and services when sold at retail and be borne and passed on to the customer, instead of being borne by the retailer. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 2000‑19, s. 1.3; 2006‑162, s. 7.)

§ 105‑164.8.  Retailer's obligation to collect tax; mail order sales subject to tax.

(a)       Obligation. – Every retailer engaged in business in this State as defined in this Article shall collect said tax notwithstanding

(1)       That the purchaser's order or the contract of sale is delivered, mailed or otherwise transmitted by the purchaser to the retailer at a point outside this State as a result of solicitation by the retailer through the medium of a catalogue or other written advertisement; or

(2)       That the purchaser's order or the contract of sale is made or closed by acceptance or approval outside this State, or before said tangible personal property enters this State; or

(3)       That the purchaser's order or the contract of sale provides that said property shall be or is in fact procured or manufactured at a point outside this State and shipped directly to the purchaser from the point of origin; or

(4)       That said property is mailed to the purchaser in this State or a point outside this State or delivered to a carrier outside this State f.o.b. or otherwise and directed to the purchaser in this State regardless of whether the cost of transportation is paid by the retailer or by the purchaser; or

(5)       That said property is delivered directly to the purchaser at a point outside this State; or

(6)       Any combination in whole or in part of any two or more of the foregoing statements of fact, if it is intended that the tangible personal property purchased be brought to this State for storage, use or consumption in this State.

(b)       Mail Order Sales. – A retailer who makes a mail order sale is engaged in business in this State and is subject to the tax levied under this Article if at least one of the following conditions is met:

(1)       The retailer is a corporation engaged in business under the laws of this State or a person domiciled in, a resident of, or a citizen of, this State.

(2)       The retailer maintains retail establishments or offices in this State, whether the mail order sales thus subject to taxation by this State result from or are related in any other way to the activities of such establishments or offices.

(3)       The retailer has representatives in this State who solicit business or transact business on behalf of the retailer, whether the mail order sales thus subject to taxation by this State result from or are related in any other way to such solicitation or transaction of business.

(4)       Repealed by Session Laws 1991, c. 45, s. 16.

(5)       The retailer, by purposefully or systematically exploiting the market provided by this State by any media‑assisted, media‑facilitated, or media‑solicited means, including direct mail advertising, distribution of catalogs, computer‑assisted shopping, television, radio or other electronic media, telephone solicitation, magazine or newspaper advertisements, or other media, creates nexus with this State.

(6)       Through compact or reciprocity with another jurisdiction of the United States, that jurisdiction uses its taxing power and its jurisdiction over the retailer in support of this State's taxing power.

(7)       The retailer consents, expressly or by implication, to the imposition of the tax imposed by this Article. For purposes of this subdivision, evidence that a retailer engaged in the activity described in subdivision (5) shall be prima facie evidence that the retailer consents to the imposition of the tax imposed by this Article.

(8)       The retailer is a holder of a wine shipper permit issued by the ABC Commission pursuant to G.S. 18B‑1001.1.

(c)       Local Tax. – A retailer who is required to collect the tax imposed by this Article must collect a local use tax on a transaction if a local sales tax does not apply to the transaction. The sourcing principles in G.S. 105‑164.4B determine whether a local sales tax or a local use tax applies to a transaction. A "local sales tax" is a tax imposed under Chapter 1096 of the 1967 Session Laws or by Subchapter VIII of this Chapter, and a local use tax is a use tax imposed under that act or Subchapter. (1957, c. 1340, s. 5; 1987 (Reg. Sess., 1988), c. 1096, s. 4; 1991, c. 45, s. 16; 2001‑347, s. 2.10; 2003‑402, s. 13; 2003‑416, ss. 24(b), 24(c).)

§ 105‑164.9.  Advertisement to absorb tax unlawful.

Any retailer who shall by any character or public advertisement offer to absorb the tax levied in this Article or in any manner directly or indirectly advertise that the tax herein imposed is not considered an element in the price to the purchaser shall be guilty of a Class 1 misdemeanor.  Any violations of the provisions of this section reported to the Secretary shall be reported by him to the Attorney General of the State to the end that such violations may be brought to the attention of the solicitor of the court of the county or district whose duty it is to prosecute misdemeanors in the jurisdiction.  It shall be the duty of such solicitor to investigate such alleged violations and if he finds that this section has been violated prosecute such violators in accordance with the law. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1993, c. 539, s. 704; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 105‑164.10.  Retail bracket system.

For the convenience of the retailer in collecting the tax due under this Article, the Secretary shall prescribe tables that compute the tax due on sales by rounding off the amount of tax due to the nearest whole cent.  The Secretary shall issue a separate table for each rate of tax that may apply to a sale, including the general rate established in G.S. 105‑164.4, preferential rates, and combined State and local rates.  Use of the tables prescribed by the Secretary does not relieve a retailer of liability for the applicable rate of tax due on the gross receipts or net taxable sales of the retailer. (1957, c. 1340, s. 5; 1961, c. 826, s. 2; 1973, c. 476, s. 193; 1991, c. 689, s. 313.)

§ 105‑164.11.  Excessive and erroneous collections.

(a)       Remittance of Over‑Collections to Secretary. – When the tax collected for any period is in excess of the total amount that should have been collected, the total amount collected must be paid over to the Secretary. When tax is collected for any period on exempt or nontaxable sales the tax erroneously collected shall be remitted to the Secretary and no refund shall be made to a taxpayer unless the purchaser has received credit for or has been refunded the amount of tax erroneously charged. This provision shall be construed with other provisions of this Article and given effect so as to result in the payment to the Secretary of the total amount collected as tax if it is in excess of the amount that should have been collected.

(b)       Refund Procedures First Remedy. – The first course of remedy available to purchasers seeking a refund of over‑collected sales or use taxes from the seller are the customer refund procedures provided in this Chapter or otherwise provided by administrative rule, bulletin, or directive on the law issued by the Secretary.

(c)       Cause of Action Against Seller. – A cause of action against the seller for over‑collected sales or uses taxes does not accrue until a purchaser has provided written notice to a seller and the seller has had 60 days to respond. The notice to the seller must contain the information necessary to determine the validity of the request.

(d)       Presumption of Reasonable Business Practice. – In connection with a purchaser's request from the seller of over‑collected sales or use taxes, a seller shall be presumed to have a reasonable business practice if, in the collection of sales and use taxes, the seller uses either a provider or a system, including a proprietary system, that is certified by the State and the seller has remitted to the State all taxes collected less any deductions, credits, or collection allowances. (1957, c. 1340, s. 5; 1959, c. 1259, s. 5; 1961, c. 826, s. 2; 1973, c. 476, s. 193; 1991 (Reg. Sess., 1992), c. 1007, s. 4; 2004‑22, s. 1.)

§ 105‑164.12: Repealed by Session Laws 2001‑347, s. 2.11.

§ 105‑164.12A.  Electric golf cart and battery charger considered a single article.

The sale of an electric golf cart and a battery charger that is not physically attached to the golf cart is considered the sale of a single article of tangible personal property in imposing tax under this Article if the battery charger is designed to recharge the golf cart and is sold to the purchaser of the golf cart when the golf cart is sold. (1985 (Reg. Sess., 1986), c. 901.)

§ 105‑164.12B.  Tangible personal property sold below cost with conditional service contract.

(a)       Conditional Service Contract Defined. – A conditional service contract is a contract in which all of the following conditions are met:

(1)       A seller transfers an item of tangible personal property to a consumer on the condition that the consumer enter into an agreement to purchase services on an ongoing basis for a minimum period of at least six months.

(2)       The agreement requires the consumer to pay a cancellation fee to the seller if the consumer cancels the contract for services within the minimum period.

(3)       For the item transferred, the seller charges the consumer a price that, after any price reduction the seller gives the consumer, is below the purchase price the seller paid for the item. The seller's purchase price is presumed to be no greater than the price the seller paid, as shown on the seller's purchase invoice, for the same item within 12 months before the seller entered into the conditional service contract.

(b)       Tax. – If a seller transfers an item of tangible personal property as part of a conditional service contract, a sale has occurred. The sales price of the item is presumed to be the retail price at which the item would sell in the absence of the conditional service contract. Sales tax is due at the time of the transfer on the following:

(1)       Any part of the presumed sales price the consumer pays at that time, if the service in the contract is taxable at the combined general rate.

(2)       The presumed sales price, if the service in the contract is not taxable at the combined general rate.

(c)‑(f). Repealed by Session Laws 2007‑244, s. 3, effective October 1, 2007. (1996, 2nd Ex. Sess., c. 13, s. 5.1; 2001‑414, ss. 16, 17; 2006‑151, s. 6; 2007‑244, s. 3.)

Part 3. Exemptions and Exclusions.

§ 105‑164.13.  Retail sales and use tax.

The sale at retail and the use, storage, or consumption in this State of the following tangible personal property and services are specifically exempted from the tax imposed by this Article:

Agricultural Group.

(1)       Any of the following items sold to a farmer for use by the farmer in the planting, cultivating, harvesting, or curing of farm crops or in the production of dairy products, eggs, or animals. A "farmer" includes a dairy operator, a poultry farmer, an egg producer, a livestock farmer, a farmer of crops, and a farmer of an aquatic species, as defined in G.S. 106‑758.

a.         Commercial fertilizer, lime, land plaster, plastic mulch, plant bed covers, potting soil, baler twine, and seeds.

b.         Farm machinery, attachment and repair parts for farm machinery, and lubricants applied to farm machinery. The term "machinery" includes implements that have moving parts or are operated or drawn by an animal. The term does not include implements operated wholly by hand or motor vehicles required to be registered under Chapter 20 of the General Statutes.

c.         A horse or mule.

d.         (Effective until July 1, 2010 – see notes) Fuel other than electricity.

d.         (Effective July 1, 2010 – see notes) Fuel.

(1a)     Sales of the following to a farmer, as defined in subdivision (1) of this section:

a.         A container used for a purpose set out in subdivision (1) of this section or in packaging and transporting the farmer's product for sale.

b.         A grain, feed, or soybean storage facility, and parts and accessories attached to the facility.

(1b)     (Effective July 1, 2010 – see notes) Electricity sold to a farmer to be used for any farming purpose other than preparing food, heating dwellings, and other household purposes.

(2)       Repealed by Session Laws 2001, c. 514, s. 1, effective February 1, 2002.

(2a)     Any of the following substances when purchased for use on animals or plants, as appropriate, held or produced for commercial purposes. This exemption does not apply to any equipment or devices used to administer, release, apply, or otherwise dispense these substances:

a.         Remedies, vaccines, medications, litter materials, and feeds for animals.

b.         Rodenticides, insecticides, herbicides, fungicides, and pesticides.

c.         Defoliants for use on cotton or other crops.

d.         Plant growth inhibitors, regulators, or stimulators, including systemic and contact or other sucker control agents for tobacco and other crops.

e.         Semen.

(3)       Products of forests and mines in their original or unmanufactured state when such sales are made by the producer in the capacity of producer.

(4)       Cotton, tobacco, peanuts or other farm products sold to manufacturers for further manufacturing or processing.

(4a)     Baby chicks and poults sold for commercial poultry or egg production.

(4b)     Products of a farm sold in their original state by the producer of the products if the producer is not primarily a retail merchant and ice used to preserve agriculture, aquaculture and commercial fishery products until the products are sold at retail.

(4c)     Any of the following items concerning the housing, raising, or feeding of animals:

a.         Commercially manufactured facilities to be used for commercial purposes for housing, raising, or feeding animals or for housing equipment necessary for these commercial activities.

b.         Building materials, supplies, fixtures, and equipment that become a part of and are used in the construction, repair, or improvement of an enclosure or a structure specifically designed, constructed, and used for housing, raising, or feeding animals or for housing equipment necessary for one of these commercial activities.

c.         Commercially manufactured equipment, and parts and accessories for the equipment, used in a facility that is exempt from tax under this subdivision or in an enclosure or a structure whose building materials are exempt from tax under this subdivision.

(4d)     Any of the following tobacco items:

a.         The lease or rental of tobacco sheets used in handling tobacco in the warehouse and transporting tobacco to and from the warehouse.

b.         A metal flue sold for use in curing tobacco, whether the flue is attached to a handfired furnace or used in connection with a mechanical burner.

c.         A bulk tobacco barn or rack, parts and accessories attached to the tobacco barn or rack, and any similar apparatus, part, or accessory used to cure or dry tobacco or another crop.

(4e)     Repealed by Session Laws 2006‑162, s. 8(b), effective July 24, 2006.

(4f)     Sales of the following to a person who is engaged in the commercial logging business:

a.         Logging machinery. – Logging machinery is machinery used to harvest raw forest products for transport to first market.

b.         Attachments and repair parts for logging machinery.

c.         Lubricants applied to logging machinery.

d.         Fuel used to operate logging machinery.

Industrial Group.

(5)       Manufactured products produced and sold by manufacturers or producers to other manufacturers, producers, or registered retailers or wholesale merchants, for the purpose of resale except as modified by G.S. 105‑164.3(51). This exemption does not extend to or include retail sales to users or consumers not for resale.

(5a)     Products that are subject to tax under Article 5F of this Chapter.

(5b)     Sales to a telephone company regularly engaged in providing telephone service to subscribers on a commercial basis of central office equipment, switchboard equipment, private branch exchange equipment, terminal equipment other than public pay telephone terminal equipment, and parts and accessories attached to the equipment.

(5c)     Sales of towers, broadcasting equipment, and parts and accessories attached to the equipment to a radio or television company licensed by the Federal Communications Commission.

(5d)     Sales of broadcasting equipment and parts and accessories attached to the equipment to a cable service provider. For the purposes of this subdivision, "broadcasting equipment" does not include cable.

(6)       Repealed by Session Laws 1989 (Regular Session, 1990), c. 1068, s. 1.

(7)       Sales of products of waters in their original or unmanufactured state when such sales are made by the producer in the capacity of producer. Fish and seafoods are likewise exempt when sold by the fisherman in that capacity.

(8)       Sales to a manufacturer of tangible personal property that enters into or becomes an ingredient or component part of tangible personal property that is manufactured. This exemption does not apply to sales of electricity.

(8a)     Sales to a small power production facility, as defined in 16 U.S.C. § 796(17)(A), of fuel used by the facility to generate electricity.

(9)       Boats, fuel oil, lubricating oils, machinery, equipment, nets, rigging, paints, parts, accessories, and supplies sold to any of the following:

a.         The holder of a standard commercial fishing license issued under G.S. 113‑168.2 for principal use in commercial fishing operations.

b.         The holder of a shellfish license issued under G.S. 113‑169.2 for principal use in commercial shellfishing operations.

c.         The operator of a for‑hire boat, as defined in G.S. 113‑174, for principal use in the commercial use of the boat.

(10)     Sales of the following to commercial laundries or to pressing and dry cleaning establishments:

a.         Articles or materials used for the identification of garments being laundered or dry cleaned, wrapping paper, bags, hangers, starch, soaps, detergents, cleaning fluids and other compounds or chemicals applied directly to the garments in the direct performance of the laundering or the pressing and cleaning service.

b.         Laundry and dry‑cleaning machinery, parts and accessories attached to the machinery, and lubricants applied to the machinery.

c.         Fuel, other than electricity, used in the direct performance of the laundering or the pressing and cleaning service.

Motor Fuels Group.

(10a)   Sales of the following to a major recycling facility:

a.         Lubricants and other additives for motor vehicles or machinery and equipment used at the facility.

b.         Materials, supplies, parts, and accessories, other than machinery and equipment, that are not capitalized by the taxpayer and are used or consumed in the manufacturing and material handling processes at the facility.

c.         Electricity used at the facility.

(10b)   Recodified as G.S. 105‑164.13(10a)c. by Session Laws 2005‑276, s. 33.9, effective January 1, 2006.

(11)     Any of the following fuel:

a.         Motor fuel, as defined in G.S. 105‑449.60, except motor fuel for which a refund of the per gallon excise tax is allowed under  G.S. 105‑449.105A or G.S. 105‑449.107.

b.         Alternative fuel taxed under Article 36D of this Chapter, unless a refund of that tax is allowed under G.S. 105‑449.107.

(11a)   Sales of diesel fuel to railroad companies for use in rolling stock other than motor vehicles. The definitions in G.S. 105‑333 apply in this subdivision.

Medical Group.

(12)     Sales of any of the following items:

a.         Prosthetic devices.

b.         Mobility enhancing equipment sold on a prescription.

c.         Durable medical equipment sold on prescription.

d.         Durable medical supplies sold on prescription.

(13)     All of the following drugs, including their packaging materials and any instructions or information about the drugs included in the package with them:

a.         Drugs required by federal law to be dispensed only on prescription.

b.         Over‑the‑counter drugs sold on prescription.

c.         Insulin.

(13a)   Repealed by Session Laws 1996, Second Extra Session, c. 14, s. 16.

(13b)   Repealed by Session Laws 1999, c. 438, s. 7, effective October 1, 1999.

(13c)   Nutritional supplements sold by a chiropractic physician at a chiropractic office to a patient as part of the patient's plan of treatment, as authorized by G.S. 90‑151.1.

Printed Materials Group.

(14)     Public school books on the adopted list, the selling price of which is fixed by State contract.

(14a)   Recodified as subdivision (33a) by Session Laws 2000‑120, s. 5, effective July 14, 2000.

Transactions Group.

(15)     Accounts of purchasers, representing taxable sales, on which the tax imposed by this Article has been paid, that are found to be worthless and actually charged off for income tax purposes may, at corresponding periods, be deducted from gross sales. In the case of a municipality that sells electricity, the account may be deducted if it meets all the conditions for charge‑off that would apply if the municipality were subject to income tax. Any accounts deducted pursuant to this subdivision must be added to gross sales if afterwards collected.

(16)     Sales of an article repossessed by the vendor if tax was paid on the sales price of the article.

Exempt Status Group.

(17)     Sales which a state would be without power to tax under the limitations of the Constitution or laws of the United States or under the Constitution of this State.

Unclassified Group.

(18)     Repealed by Session Laws 2005‑276, s. 33.9, effective January 1, 2006.

(19)     Repealed by Session Laws 1991, c. 618, s. 1.

(20)     Sales by blind merchants operating under supervision of the Department of Health and Human Services.

(21)     The lease or rental of motion picture films used for exhibition purposes where the lease or rental of such property is an established business or part of an established business or the same is incidental or germane to said business of the lessee.

(22)     The lease or rental of films, motion picture films, transcriptions and recordings to radio stations and television stations operating under a certificate from the Federal Communications Commission.

(22a)   Sales of audiovisual masters made or used by a production company in making visual and audio images for first generation reproduction. For the purpose of this subdivision, an "audiovisual master" is an audio or video film, tape, or disk or another audio or video storage device from which all other copies are made.

(23)     Sales of the following packaging items:

a.         Wrapping paper, labels, wrapping twine, paper, cloth, plastic bags, cartons, packages and containers, cores, cones or spools, wooden boxes, baskets, coops and barrels, including paper cups, napkins and drinking straws and like articles sold to manufacturers, producers and retailers, when such materials are used for packaging, shipment or delivery of tangible personal property which is sold either at wholesale or retail and when such articles constitute a part of the sale of such tangible personal property and are delivered with it to the customer.

b.         A container that is used as packaging by the owner of the container or another person to enclose tangible personal property for delivery to a purchaser of the property and is required to be returned to its owner for reuse.

(24)     Sales of fuel and other items of tangible personal property for use or consumption by or on ocean‑going vessels which ply the high seas in interstate or foreign commerce in the transport of freight and/or passengers for hire exclusively, when delivered to an officer or agent of such vessel for the use of such vessel; provided, however, that sales of fuel and other items of tangible personal property made to officers, agents, members of the crew or passengers of such vessels for their personal use shall not be exempted from payment of the sales tax.

(25)     Sales by merchants on the Cherokee Indian Reservation when such merchants are authorized to do business on the Reservation and are paying the tribal gross receipts levy to the Tribal Council.

(26)     Food sold not for profit by public or private school cafeterias within school buildings during the regular school day.

(26a)   Food sold not for profit by a public school cafeteria to a child care center that participates in the Child and Adult Care Food Program of the Department of Public Instruction.

(27)     Meals and food products served to students in dining rooms regularly operated by State or private educational institutions or student organizations thereof.

(27a)   Bread, rolls, and buns sold at a bakery thrift store. A "bakery thrift store" is a retail outlet of a bakery that sells at wholesale over ninety percent (90%) of the items it makes and sells at the retail outlet day‑old bread, rolls, and buns returned to it by retailers that acquired these items from the bakery.

(28)     Sales of newspapers by newspaper street vendors, by newspaper carriers making door‑to‑door deliveries, and by means of vending machines and sales of magazines by magazine vendors making door‑to‑door sales.

(29)     Repealed by Session Laws 2005‑435, s. 30, effective September 27, 2005.

(29a)   Repealed by Session Laws 1995 (Regular Session, 1996), c. 646, s. 5.

(30)     Sales from vending machines when sold by the owner or lessee of said machines at a price of one cent (1¢) per sale.

(31)     Sales of meals not for profit to elderly and incapacitated persons by charitable or religious organizations not operated for profit which are entitled to the refunds provided by G.S. 105‑164.14(b), when such meals are delivered to the purchasers at their places of abode.

(31a)   Food sold by a church or religious organization not operated for profit when the proceeds of the sales are actually used for religious activities.

(31b)   Repealed by Session Laws 1996, Second Extra Session, c. 14, s. 16.

(32)     Sales of motor vehicles, the sale of a motor vehicle body to be mounted on a motor vehicle chassis when a certificate of title has not been issued for the chassis, and the sale of a motor vehicle body mounted on a motor vehicle chassis that temporarily enters the State so the manufacturer of the body can mount the body on the chassis.

(33)     Tangible personal property purchased solely for the purpose of export to a foreign country for exclusive use or consumption in that or some other foreign country, either in the direct performance or rendition of professional or commercial services, or in the direct conduct or operation of a trade or business, all of which purposes are actually consummated, or purchased by the government of a foreign country for export which purpose is actually consummated. "Export" shall include the acts of possessing and marshalling such property, by either the seller or the purchaser, for transportation to a foreign country, but shall not include devoting such property to any other use in North Carolina or the United States. "Foreign country" shall not include any territory or possession of the United States.

In order to qualify for this exemption, an affidavit of export indicating compliance with the terms and conditions of this exemption, as prescribed by the Secretary of Revenue, must be submitted by the purchaser to the seller, and retained by the seller to evidence qualification for the exemption.

If the purposes qualifying the property for exemption are not consummated, the purchaser shall be liable for the tax which was avoided by the execution of the aforesaid affidavit as well as for applicable penalties and interest and the affidavit shall contain express provision that the purchaser has recognized and assumed such liability.

The principal purpose of this exemption is to encourage the flow of commerce through North Carolina ports that is now moving through out‑of‑state ports. However, it is not intended that property acquired for personal use or consumption by the purchaser, including gifts, shall be exempt hereunder.

(33a)   Tangible personal property sold by a retailer to a purchaser within or without this State, when the property is delivered in this State to a common carrier or to the United States Postal Service for delivery to the purchaser or the purchaser's designees outside this State and the purchaser does not subsequently use the property in this State.

(34)     Sales of items by a nonprofit civic, charitable, educational, scientific or literary organization when the net proceeds of the sales will be given or contributed to the State of North Carolina or to one or more of its agencies or instrumentalities, or to one or more nonprofit charitable organizations, one of whose purposes is to serve as a conduit through which such net proceeds will flow to the State or to one or more of its agencies or instrumentalities.

(35)     Sales by a nonprofit civic, charitable, educational, scientific, literary, or fraternal organization when all of the following conditions are met:

a.         The sales are conducted only upon an annual basis for the purpose of raising funds for the organization's activities.

b.         The proceeds of the sale are actually used for the organization's activities.

c.         The products sold are delivered to the purchaser within 60 days after the first solicitation of any sale made during the organization's annual sales period.

(36)     Advertising supplements and any other printed matter ultimately to be distributed with or as part of a newspaper.

(37)     Repealed by Session Laws 2001‑424, s. 34.23(a), effective December 1, 2001, and applicable to sales made on or after that date.

(38)     Food and other items lawfully purchased under the Food Stamp Program, 7 U.S.C. § 2011, and supplemental foods lawfully purchased with a food instrument issued under the Special Supplemental Food Program, 42 U.S.C. § 1786, and supplemental foods purchased for direct distribution by the Special Supplemental Food Program.

(39)     Sales of paper, ink, and other tangible personal property to commercial printers and commercial publishers for use as ingredients or component parts of free distribution periodicals and sales by printers of free distribution periodicals to the publishers of these periodicals. As used in this subdivision, the term "free distribution periodical" means a publication that is continuously published on a periodic basis monthly or more frequently, is provided without charge to the recipient, and is distributed in any manner other than by mail.

(40)     Sales to the Department of Transportation.

(41)     Sales of mobile classrooms to local boards of education or to local boards of trustees of community colleges.

(42)     Tangible personal property that is purchased by a retailer for resale or is manufactured or purchased by a wholesale merchant for resale and then withdrawn from inventory and donated by the retailer or wholesale merchant to either a governmental entity or a nonprofit organization, contributions to which are deductible as charitable contributions for federal income tax purposes.

(43)     Custom computer software. Custom computer software and the portion of prewritten computer software that is modified or enhanced if the modification or enhancement is designed and developed to the specifications of a specific purchaser and the charges for the modification or enhancement are separately stated.

(43a)   Computer software delivered electronically or delivered by load and leave.

(44)     Piped natural gas. – This item is exempt because it is taxed under Article 5E of this Chapter.

(45)     Sales of the following items to an interstate passenger air carrier for use at its hub:

a.         Aircraft lubricants, aircraft repair parts, and aircraft accessories.

b.         Aircraft simulators for flight crew training.

(45a)   Sales to an interstate air business of tangible personal property that becomes a component part of or is dispensed as a lubricant into commercial aircraft during its maintenance, repair, or overhaul. For the purpose of this subdivision, commercial aircraft includes only aircraft that has a certified maximum take‑off weight of more than 12,500 pounds and is regularly used to carry for compensation passengers, commercial freight, or individually addressed letters and packages.

(45b)   Sales of the following items to an interstate air courier for use at its hub:

a.         Aircraft lubricants, aircraft repair parts, and aircraft accessories.

b.         Materials handling equipment, racking systems, and related parts and accessories for the storage or handling and movement of tangible personal property at an airport or in a warehouse or distribution facility.

(46)     Sales of electricity by a municipality whose only wholesale supplier of electric power is a federal agency and who is required by a contract with that federal agency to make payments in lieu of taxes.

(47)     An amount charged as a deposit on a beverage container that is returnable to the vendor for reuse when the amount is refundable or creditable to the vendee, whether or not the deposit is separately charged.

(48)     An amount charged as a deposit on an aeronautic, automotive, industrial, marine, or farm replacement part that is returnable to the vendor for rebuilding or remanufacturing when the amount is refundable or creditable to the vendee, whether or not the deposit is separately charged. This exemption does not include tires or batteries.

(49)     Installation charges when the charges are separately stated.

(49a)   Delivery charges for delivery of direct mail if the charges are separately stated on an invoice or similar billing document given to the purchaser.

(50)     Fifty percent (50%) of the sales price of tangible personal property sold through a coin‑operated vending machine, other than tobacco.

(51)     Water delivered by or through main lines or pipes for either commercial or domestic use or consumption.

(52)     Items subject to sales and use tax under G.S. 105‑164.4, other than electricity, telecommunications service, and ancillary service as defined in G.S. 105‑164.4, if all of the following conditions are met:

a.         The items are purchased by a State agency for its own use and in accordance with G.S. 105‑164.29A.

b.         The items are purchased pursuant to a valid purchase order issued by the State agency that contains the exemption number of the agency and a description of the property purchased, or the items purchased are paid for with a State‑issued check, electronic deposit, credit card, procurement card, or credit account of the State agency.

c.         For all purchases other than by an agency‑issued purchase order, the agency must provide to or have on file with the retailer the agency's exemption number.

(53)     Sales to a professional land surveyor of tangible personal property on which custom aerial survey data is stored in digital form or is depicted in graphic form. Data is custom if it was created to the specifications of the professional land surveyor purchasing the property. A professional land surveyor is a person licensed as a surveyor under Chapter 89C of the General Statutes.

(54)     The following telecommunications services and charges:

a.         Telecommunications service that is a component part of or is integrated into a telecommunications service that is resold. This exemption does not apply to service purchased by a pay telephone provider who uses the service to provide pay telephone service. Examples of services that are resold include carrier charges for access to an intrastate or interstate interexchange network, interconnection charges paid by a provider of mobile telecommunications service, and charges for the sale of unbundled network elements. An unbundled network element is a network element, as defined in 47 U.S.C. § 153(29), to which access is provided on an unbundled basis pursuant to 47 U.S.C. § 251(c)(3).

b.         Pay telephone service.

c.         911 charges imposed under G.S. 62A‑43 and remitted to the 911 Fund under that section.

d.         Charges for telecommunications service made by a hotel, motel, or another entity whose gross receipts are taxable under G.S. 105‑164.4(a)(3) when the charges are incidental to the occupancy of the entity's accommodations.

e.         Telecommunications service purchased by a State agency or a unit of local government for the North Carolina Information Highway or another data network owned or leased by the State or unit of local government.

(55)     Sales of electricity for use at an eligible Internet data center and eligible business property to be located and used at an eligible Internet data center. As used in this subdivision, "eligible business property" is property that is capitalized for tax purposes under the Code and is used either:

a.         For the provision of Internet service or Web search portal services as contemplated by G.S. 105‑164.3(8e)a., including equipment cooling systems for managing the performance of the property.

b.         For the generation, transformation, transmission, distribution, or management of electricity, including exterior substations and other business personal property used for these purposes.

c.         To provide related computer engineering or computer science research.

If the level of investment required by G.S. 105‑164.3(8e)d. is not timely made, then the exemption provided under this subdivision is forfeited. If the level of investment required by G.S. 105‑164.3(8e)d. is timely made but any specific eligible business property is not located and used at an eligible Internet data center, then the exemption provided for such eligible business property under this subdivision is forfeited. If the level of investment required by G.S. 105‑164.3(8e)d. is timely made but any portion of the electricity is not used at an eligible Internet data center, then the exemption provided for such electricity under this subdivision is forfeited. A taxpayer that forfeits an exemption under this subdivision is liable for all past taxes avoided as a result of the forfeited exemption, computed from the date the taxes would have been due if the exemption had not been allowed, plus interest at the rate established under G.S. 105‑241.21. If the forfeiture is triggered due to the lack of a timely investment required by G.S. 105‑164.3(8e)d., then interest is computed from the date the taxes would have been due if the exemption had not been allowed. For all other forfeitures, interest is computed from the time as of which the eligible business property or electricity was put to a disqualifying use. The past taxes and interest are due 30 days after the date the exemption is forfeited. A taxpayer that fails to pay the past taxes and interest by the due date is subject to the provisions of G.S. 105‑236.

(56)     Sales to the owner or lessee of an eligible railroad intermodal facility of intermodal cranes, intermodal hostler trucks, and railroad locomotives that reside on the premises of the facility and are used at the facility.

(57)     (Effective July 1, 2010 – see notes) Fuel and electricity sold to a manufacturer for use in connection with the operation of a manufacturing facility.

(58)     Tangible personal property purchased with a client assistance debit card issued for disaster assistance relief by a State agency or a federal agency or instrumentality.

(59)     Interior design services provided in conjunction with the sale of tangible personal property.  (1957, c. 1340, s. 5; 1959, c. 670; c. 1259, s. 5; 1961, c. 826, s. 2; cc. 1103, 1163; 1963, c. 1169, ss. 7‑9; 1965, c. 1041; 1967, c. 756; 1969, c. 907; 1971, c. 990; 1973, c. 476, s. 143; c. 708, s. 1; cc. 1064, 1076; c. 1287, s. 8; 1975, 2nd Sess., c. 982; 1977, c. 771, s. 4; 1977, 2nd Sess., c. 1219, s. 43.6; 1979, c. 46, ss. 1, 2; c. 156, s. 1; c. 201; c. 625, ss. 1, 2; c. 801, ss. 74, 75; 1979, 2nd Sess., c. 1099, s. 1; 1981, cc. 14, 207, 982; 1983, c. 156; c. 570, s. 21; c. 713, ss. 91, 92; c. 873; c. 887; 1983 (Reg. Sess., 1984), c. 1071, s. 1; 1985, c. 114, s. 4; c. 555; c. 656, ss. 24, 25; 1985 (Reg. Sess., 1986), c. 953; c. 973; c. 982, s. 2; 1987, c. 800, s. 1; 1987 (Reg. Sess., 1988), c. 937; 1989, c. 692, ss. 3.5, 3.6; c. 748, s. 1; 1989 (Reg. Sess., 1990), c. 989; c. 1060; c. 1068, ss. 1, 2; 1991, c. 45, s. 17; c. 79, s. 2; c. 618, s. 1; c. 689, s. 314; 1991 (Reg. Sess., 1992), c. 931, ss. 1, 2; c. 935, s. 1; c. 940, s. 1; c. 949, s. 1; c. 1007, s. 44; 1993, c. 484, s. 3; c. 513, s. 11; 1993 (Reg. Sess., 1994), c. 739, s. 1; 1995, c. 390, s. 14; c. 451, s. 1; c. 477, ss. 2, 3; 1995 (Reg. Sess., 1996), c. 646, ss. 4, 5; c. 649, s. 1; 1996, 2nd Ex. Sess., c. 14, ss. 15, 16; 1997‑369, s. 2; 1997‑370, s. 2; 1997‑397, s. 1; 1997‑423, s. 3; 1997‑443, s. 11A.118(a); 1997‑456, s. 27; 1997‑506, s. 36; 1997‑521, s. 1; 1998‑22, s. 6; 1998‑55, ss. 9, 15; 1998‑98, ss. 14, 14.1, 49, 107; 1998‑146, s. 9; 1998‑171, s. 10(a), (b); 1998‑225, s. 4.3; 1999‑337, s. 31; 1999‑360, s. 7(a)‑(c); 1999‑438, ss. 5‑12; 2000‑120, s. 5; 2000‑153, s. 5; 2001‑347, s. 2.12; 2001‑424, s. 34.23(a); 2001‑476, s. 17(e); 2001‑509, s. 1; 2001‑514, s. 1; 2002‑184, s. 9; 2003‑284, ss. 45.5, 45.5A; 2003‑349, s. 11; 2003‑416, ss. 18(a), 21; 2003‑431, s. 1; 2004‑124, ss. 32B.2, 32B.4; 2005‑276, s. 33.9; 2005‑435, ss. 30, 31; 2006‑19, s. 1; 2006‑33, s. 5; 2006‑66, s. 24.17(b); 2006‑162, ss. 8(a), 8(b); 2006‑168, s. 4.2; 2006‑252, s. 2.25(b); 2007‑244, s. 4; 2007‑323, s. 31.23(c); 2007‑368, s. 1; 2007‑383, s. 6; 2007‑397, ss. 10(g), 10(h); 2007‑491, s. 44(1)a; 2007‑500, s. 1; 2007‑527, ss. 10, 27; 2008‑107, ss. 28.6(a), 28.20(a).)

§ 105‑164.13A.  Service charges on food, beverages, or meals.

When a service charge is imposed on food, beverages, or meals, so much of the service charge that does not exceed twenty percent (20%) of the sales price is considered a tip and is specifically exempted from the tax imposed by this Article if it meets both of the following conditions:

(1)       Is separately stated in the price list, menu, or written proposal and also in the invoice or bill.

(2)       Is turned over to the personnel directly involved in the service of the food, beverages, or meals, in accordance with G.S. 95‑25.6. (1979, c. 801, s. 76; 1979, 2nd Sess., c. 1101; 1999‑438, s. 13.)

§ 105‑164.13B.  Food exempt from tax.

(a)       State Exemption. – Food is exempt from the taxes imposed by this Article unless the food is included in one of the subdivisions in this subsection. The following food items are subject to tax:

(1)       Repealed by Session Laws 2005‑276, s. 33.10, effective October 1, 2005.

(2)       Dietary supplements.

(3)       Food sold through a vending machine.

(4)       (Effective until January 1, 2009) Prepared food.

(4)       (Effective January 1, 2009) Prepared food, other than bakery items sold without eating utensils by an artisan bakery. The term "bakery item" includes bread, rolls, buns, biscuits, bagels, croissants, pastries, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas. An artisan bakery is a bakery that meets all of the following requirements:

a.         It derives over eighty percent (80%) of its gross receipts from bakery items.

b.         Its annual gross receipts, combined with the gross receipts of all related persons as defined in G.S. 105‑163.010, do not exceed one million eight hundred thousand dollars ($1,800,000).

(5)       Soft drinks.

(6)       Repealed by Session Laws 2003‑284, s. 45.6B, effective January 1, 2004.

(7)       Candy.

(b)       Administration of Local Food Tax. – The Secretary must administer local sales and use taxes imposed on food as if they were imposed under this Article. This applies to local taxes on food imposed under Subchapter VIII of this Chapter and under Chapter 1096 of the 1967 Session Laws.  (1998‑212, s. 29A.1(b); 2001‑347, s. 2.13; 2001‑489, s. 3(b); 2003‑284, ss. 45.6, 45.6A, 45.6B; 2003‑416, s. 22; 2005‑276, s. 33.10; 2008‑107, s. 28.19(a).)

§ 105‑164.13C.  Sales and use tax holiday.

(a)       The taxes imposed by this Article do not apply to the following items of tangible personal property if sold between 12:01 A.M. on the first Friday of August and 11:59 P.M. the following Sunday:

(1)       Clothing with a sales price of one hundred dollars ($100.00) or less per item.

(2)       School supplies with a sales price of one hundred dollars ($100.00) or less per item.

(2a)     School instructional materials with a sales price of three hundred dollars ($300.00) or less per item.

(3)       Computers with a sales price of three thousand five hundred dollars ($3,500) or less per item.

(3a)     Computer supplies with a sales price of two hundred fifty dollars ($250.00) or less per item.

(4)       Sport or recreational equipment with a sales price of fifty dollars ($50.00) or less per item.

(b)       The exemption allowed by this section does not apply to the following:

(1)       Sales of clothing accessories or equipment.

(2)       Sales of protective equipment.

(3)       Sales of furniture.

(4)       Repealed by Session Laws 2003‑284, s. 45.7, effective October 1, 2003.

(5)       Sales of an item for use in a trade or business.

(6)       Rentals.

(c)       Repealed by Session Laws 2003‑284, s. 45.7, effective October 1, 2003. (2001‑424, s. 34.16(a); 2001‑476, s. 18(b); 2003‑284, s. 45.7; 2005‑276, s. 33.11; 2007‑323, s. 31.14(b).)

§ 105‑164.13D.  Sales and use tax holiday for Energy Star qualified products.

(a)       The taxes imposed by this Article do not apply to the Energy Star qualified products listed in this section if sold between 12:01 A.M. on the first Friday of November and 11:59 P.M. the following Sunday. The qualified products are:

(1)       Clothes washers.

(2)       Freezers and refrigerators.

(3)       Central air conditioners and room air conditioners.

(4)       Air‑source heat pumps and geothermal heat pumps.

(5)       Ceiling fans.

(6)       Dehumidifiers.

(7)       Programmable thermostats.

(b)       The exemption allowed by this section does not apply to the following:

(1)       The sale of a product for use in a trade or business.

(2)       The rental of a product.  (2008‑107, s. 28.12(b).)

§ 105‑164.14.  Certain refunds authorized.

(a)       Interstate Carriers. – An interstate carrier is allowed a refund, in accordance with this section, of part of the sales and use taxes paid by it on the purchase in this State of railway cars and locomotives, and fuel, lubricants, repair parts, and accessories for a motor vehicle, railroad car, locomotive, or airplane the carrier operates. An "interstate carrier" is a person who is engaged in transporting persons or property in interstate commerce for compensation. The Secretary shall prescribe the periods of time, whether monthly, quarterly, semiannually, or otherwise, with respect to which refunds may be claimed, and shall prescribe the time within which, following these periods, an application for refund may be made.

An applicant for refund shall furnish the following information and any proof of the information required by the Secretary:

(1)       A list identifying the railway cars, locomotives, fuel, lubricants, repair parts, and accessories purchased by the applicant inside or outside this State during the refund period.

(2)       The purchase price of the items listed in subdivision (1) of this subsection.

(3)       The sales and use taxes paid in this State on the listed items.

(4)       The number of miles the applicant's motor vehicles, railroad cars, locomotives, and airplanes were operated both inside and outside this State during the refund period.

(5)       Any other information required by the Secretary.

For each applicant, the Secretary shall compute the amount to be refunded as follows. First, the Secretary shall determine the ratio of the number of miles the applicant operated its motor vehicles, railroad cars, locomotives, and airplanes in this State during the refund period to the number of miles it operated them both inside and outside this State during the refund period. Second, the Secretary shall determine the applicant's proportional liability for the refund period by multiplying this mileage ratio by the purchase price of the items identified in subdivision (1) of this subsection and then multiplying the resulting product by the tax rate that would have applied to the items if they had all been purchased in this State. Third, the Secretary shall refund to each applicant the excess of the amount of sales and use taxes the applicant paid in this State during the refund period on these items over the applicant's proportional liability for the refund period.

(a1)     (Repealed for purchases made on or after January 1, 2011) Passenger Plane Maximum. – An interstate passenger air carrier is allowed a refund of the net amount of sales and use tax paid by it in this State on fuel during a calendar year in excess of two million five hundred thousand dollars ($2,500,000). The "net amount of sales and use tax paid" is the amount paid less the refund allowed under subsection (a) of this section. A request for a refund must be in writing and must include any information and documentation the Secretary requires. A request for a refund is due within six months after the end of the calendar year for which the refund is claimed. The refund allowed by this subsection is in addition to the refund allowed in subsection (a) of this section. This subsection is repealed for purchases made on or after January 1, 2011.

(a2)     Utility Companies. – A utility company is allowed a refund, in accordance with this section, of part of the sales and use taxes paid by it on the purchase in this State of railway cars and locomotives and accessories for a railway car or locomotive the utility company operates. The Secretary shall prescribe the periods of time, whether monthly, quarterly, semiannually, or otherwise, with respect to which refunds may be claimed and shall prescribe the time within which, following these periods, an application for refund may be made.

An applicant for refund shall furnish the following information and any proof of the information required by the Secretary:

(1)       A list identifying the railway cars, locomotives, and accessories purchased by the applicant inside or outside this State during the refund period.

(2)       The purchase price of the items listed in subdivision (1) of this subsection.

(3)       The sales and use taxes paid in this State on the listed items.

(4)       The number of miles the applicant's railway cars and locomotives were operated both inside and outside this State during the refund period.

(5)       Any other information required by the Secretary.

For each applicant, the Secretary shall compute the amount to be refunded as follows. First, the Secretary shall determine the ratio of the number of miles the applicant operated its railway cars and locomotives in this State during the refund period to the number of miles it operated them both inside and outside this State during the refund period. Second, the Secretary shall determine the applicant's proportional liability for the refund period by multiplying this mileage ratio by the purchase price of the items identified in subdivision (1) of this subsection and then multiplying the resulting product by the tax rate that would have applied to the items if they had all been purchased in this State. Third, the Secretary shall refund to each applicant the excess of the amount of sales and use taxes the applicant paid in this State during the refund period on these items over the applicant's proportional liability for the refund period.

(b)       Nonprofit Entities and Hospital Drugs. – A nonprofit entity included in the following list is allowed a semiannual refund of sales and use taxes paid by it under this Article on direct purchases of tangible personal property and services, other than electricity, telecommunications service, and ancillary service, for use in carrying on the work of the nonprofit entity:

(1)       Hospitals not operated for profit, including hospitals and medical accommodations operated by an authority created under the Hospital Authorities Law, Article 2 of Chapter 131E of the General Statutes.

(2)       An organization that is exempt from income tax under section 501(c)(3) of the Code, other than an organization that is properly classified in any of the following major group areas of the National Taxonomy of Exempt Entities:

a.         Community Improvement and Capacity Building.

b.         Public and Societal Benefit.

c.         Mutual and Membership Benefit.

(3)       Repealed by Session Laws 2008‑107, s. 28.22(a), effective July 1, 2008, and applicable to purchases made on or after that date.

(4)       Qualified retirement facilities whose property is excluded from property tax under G.S. 105‑278.6A.

(5)       A university affiliated nonprofit organization that procures, designs, constructs, or provides facilities to, or for use by, a constituent institution of The University of North Carolina. For purposes of this subdivision, a nonprofit organization includes an entity exempt from taxation as a disregarded entity of the nonprofit organization.

Sales and use tax liability indirectly incurred by a nonprofit entity on building materials, supplies, fixtures, and equipment that become a part of or annexed to any building or structure that is owned or leased by the nonprofit entity and is being erected, altered, or repaired for use by the nonprofit entity for carrying on its nonprofit activities is considered a sales or use tax liability incurred on direct purchases by the nonprofit entity.

A hospital that is not allowed a refund under this subsection of sales and use taxes paid on its direct purchases of tangible personal property is allowed a semiannual refund of sales and use taxes paid by it on medicines and drugs purchased for use in carrying out its work.

The refunds allowed under this subsection for certain nonprofit entities and for medicines and drugs purchased by hospitals do not apply to organizations, corporations, and institutions that are owned and controlled by the United States, the State, or a unit of local government, except hospital facilities created under Article 2 of Chapter 131E of the General Statutes and nonprofit hospitals owned and controlled by a unit of local government that elect to receive semiannual refunds under this subsection instead of annual refunds under subsection (c).

A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund for the first six months of a calendar year is due the following October 15; a request for a refund for the second six months of a calendar year is due the following April 15.

(c)       Certain Governmental Entities. – A governmental entity listed in this subsection is allowed an annual refund of sales and use taxes paid by it under this Article on direct purchases of tangible personal property and services, other than electricity, telecommunications service, and ancillary service. Sales and use tax liability indirectly incurred by a governmental entity on building materials, supplies, fixtures, and equipment that become a part of or annexed to any building or structure that is owned or leased by the governmental entity and is being erected, altered, or repaired for use by the governmental entity is considered a sales or use tax liability incurred on direct purchases by the governmental entity for the purpose of this subsection. A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund is due within six months after the end of the governmental entity's fiscal year.

This subsection applies only to the following governmental entities:

(1)       A county.

(2)       A city as defined in G.S. 160A‑1.

(2a)     A consolidated city‑county as defined in G.S. 160B‑2.

(2b),    (2c) Repealed by Session Laws 2005‑276, s. 7.51(a), effective July 1, 2005, and applicable to sales made on or after that date.

(3)       A metropolitan sewerage district or a metropolitan water district in this State.

(4)       A water and sewer authority created under Chapter 162A of the General Statutes.

(5)       A lake authority created by a board of county commissioners pursuant to an act of the General Assembly.

(6)       A sanitary district.

(7)       A regional solid waste management authority created pursuant to G.S. 153A‑421.

(8)       An area mental health, developmental disabilities, and substance abuse authority, other than a single‑county area authority, established pursuant to Article 4 of Chapter 122C of the General Statutes.

(9)       A district health department, or a public health authority created pursuant to Part 1A of Article 2 of Chapter 130A of the General Statutes.

(10)     A regional council of governments created pursuant to G.S. 160A‑470.

(11)     A regional planning and economic development commission or a regional economic development commission created pursuant to Chapter 158 of the General Statutes.

(12)     A regional planning commission created pursuant to G.S. 153A‑391.

(13)     A regional sports authority created pursuant to G.S. 160A‑479.

(14)     A public transportation authority created pursuant to Article 25 of Chapter 160A of the General Statutes.

(14a)   A facility authority created pursuant to Part 4 of Article 20 of Chapter 160A of the General Statutes.

(15)     A regional public transportation authority created pursuant to Article 26 of Chapter 160A of the General Statutes, or a regional transportation authority created pursuant to Article 27 of Chapter 160A of the General Statutes.

(16)     A local airport authority that was created pursuant to a local act of the General Assembly.

(17)     A joint agency created by interlocal agreement pursuant to G.S. 160A‑462 to operate a public broadcasting television station.

(18)     Repealed by Session Laws 2001‑474, s. 7, effective November 29, 2001.

(19)     Repealed by Session Laws 2001‑474, s. 7, effective November 29, 2001.

(20)     A constituent institution of The University of North Carolina, but only with respect to sales and use tax paid by it for tangible personal property or services that are eligible for refund under this subsection acquired by it through the expenditure of contract and grant funds.

(21)     The University of North Carolina Health Care System.

(22)     A regional natural gas district created pursuant to Article 28 of Chapter 160A of the General Statutes.

(d)       Late Applications. – Refunds applied for more than three years after the due date are barred.

(d1)     Alcoholic Beverages. – The refunds authorized by this section do not apply to purchases of alcoholic beverages, as defined in G.S. 18B‑101.

(e)       State Agencies. – The State is allowed quarterly refunds of local sales and use taxes paid indirectly by the State agency on building materials, supplies, fixtures, and equipment that become a part of or annexed to a building or structure that is owned or leased by the State agency and is being erected, altered, or repaired for use by the State agency.

A person who pays local sales and use taxes on building materials or other tangible personal property for a State building project shall give the State agency for whose project the property was purchased a signed statement containing all of the following information:

(1)       The date the property was purchased.

(2)       The type of property purchased.

(3)       The project for which the property was used.

(4)       If the property was purchased in this State, the county in which it was purchased.

(5)       If the property was not purchased in this State, the county in which the property was used.

(6)       The amount of sales and use taxes paid.

If the property was purchased in this State, the person shall attach a copy of the sales receipt to the statement. A State agency to whom a statement is submitted shall verify the accuracy of the statement.

Within 15 days after the end of each calendar quarter, every State agency shall file with the Secretary a written application for a refund of taxes to which this subsection applies paid by the agency during the quarter. The application shall contain all information required by the Secretary. The Secretary shall credit the local sales and use tax refunds directly to the General Fund.

(f)        Information to Counties and Cities. – The Secretary must give information on refunds of tax made under this section to a designated county or city official within 30 days after the official makes a written request to the Secretary for the information. For a request made by a county official, the Secretary must give the official a list of each claimant that received a refund in the past 12 months of at least one thousand dollars ($1,000) of tax paid to the county. For a request made by a city official, the Secretary must give the official a list of each claimant that received a refund in the past 12 months of at least one thousand dollars ($1,000) of tax paid to all the counties in which the city is located. The list must include the name and address of each of these claimants and the amount of the refund received from each county covered by the request.

A claimant that has received a refund under this section of tax paid to a county must give information on the refund to a designated official of the county or a city located in the county. The claimant must give the information to the county or city official within 30 days after the official makes a written request to the claimant for the information. For a request by a county or city official, the claimant must give the official a copy of the request for the refund and any supporting documentation requested by the official to verify the request. If a claimant determines that a refund it has received under this section is incorrect, the claimant must file an amended request for a refund.

For the purpose of this subsection, a designated county official is the chair of the board of county commissioners or a county official designated in a resolution adopted by the Board, and a designated city official is the mayor of the city or a city official designated in a resolution adopted by the city's governing board. Information given to a county or city official under this section is not a public record and may not be disclosed except as provided in G.S. 153A‑148.1 or G.S. 160A‑208.1.

(g)       Major Recycling Facilities. – The owner of a major recycling facility is allowed an annual refund of sales and use taxes paid by it under this Article on building materials, building supplies, fixtures, and equipment that become a part of the real property of the recycling facility. Liability incurred indirectly by the owner for sales and use taxes on these items is considered tax paid by the owner. A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund is due within six months after the end of the major recycling facility's fiscal year. Refunds applied for after the due date are barred.

(h)       Low Enterprise or Development Tier Machinery. – Eligible taxpayers are allowed an annual refund of sales and use taxes paid under this Article as provided in this subsection.

(1)       Refunds. – An eligible person is allowed an annual refund of sales and use taxes paid by it under this Article at the general rate of tax on eligible machinery and equipment it purchases for use in an enterprise tier one area or an enterprise tier two area, as defined in G.S. 105‑129.3 or a development tier one area, as defined in G.S. 143B‑437.08. Liability incurred indirectly by the taxpayer for sales and use taxes on these items is considered tax paid by the taxpayer. A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund is due within six months after the end of the State's fiscal year. Refunds applied for after the due date are barred.

(2)       Eligibility. – A person is eligible for the refund provided in this subsection if it is engaged primarily in one of the businesses listed in G.S. 105‑129.4(a) in an enterprise tier one area or an enterprise tier two area, as defined in G.S. 105‑129.3 or if it is engaged primarily in one of the businesses listed in G.S. 105‑129.83(a) in a development tier one area, as defined in G.S. 143B‑437.08.

(3)       Machinery and equipment. – For the purpose of this subsection, the term "machinery and equipment" means engines, machinery, equipment, tools, and implements used or designed to be used in one of the businesses listed in G.S. 105‑129.4(a) or G.S. 105‑129.83(a). Machinery and equipment are eligible for the refund provided in this subsection if the taxpayer places them in service in an enterprise tier one area or an enterprise tier two area, as defined in G.S. 105‑129.3, or a development tier one area, as defined in G.S. 143B‑437.08, capitalizes them for tax purposes under the Code, and does not lease them to another party.

(i)        (Repealed for taxes paid on or after January 1, 2008) Nonprofit Insurance Companies. – Eligible nonprofit insurance companies are allowed an annual refund of sales and use taxes paid under this Article as provided in this subsection.

(1)       Refunds. – An eligible nonprofit insurance company is allowed an annual refund of sales and use taxes paid by it under this Article on building materials, building supplies, fixtures, and equipment that become a part of its real property. Liability incurred indirectly by the company for sales and use taxes on these items is considered tax paid by the company. A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund is due within six months after the end of the insurance company's fiscal year. Refunds applied for after the due date are barred.

(2)       Eligibility. – An insurance company is eligible for the refund provided in this subsection if it meets all of the following conditions:

a.         It is a nonprofit corporation.

b.         It is operated for the exclusive purpose of providing insurance and annuity contracts to or for the benefit of (i) organizations exempt from federal income tax under section 501(c)(3) of the Code and their employees or (ii) public institutions and their employees.

c.         The Secretary of Commerce has certified that the insurance company will invest at least twenty million dollars ($20,000,000) in constructing a facility in this State for the conduct of its operations.

(3)       Forfeiture. – If an eligible insurance company does not make the required minimum investment within five years after its first refund under this subsection, it loses its eligibility and forfeits all refunds already received under this subsection. Upon forfeiture, the company is liable for tax under this Article equal to the amount of all past taxes refunded under this subsection, plus interest at the rate established in G.S. 105‑241.21, computed from the date each refund was issued. The tax and interest are due 30 days after the date of the forfeiture. A company that fails to pay the tax and interest is subject to the penalties provided in G.S. 105‑236.

(j)        (Repealed for sales made on or after January 1, 2013) Certain Industrial Facilities. – The owner of an eligible facility is allowed an annual refund of sales and use taxes as provided in this subsection.

(1)       Refund. – The owner of an eligible facility is allowed an annual refund of sales and use taxes paid by it under this Article on qualified building materials, building supplies, fixtures, and equipment that become a part of the real property of the eligible facility. Liability incurred indirectly by the owner for sales and use taxes on these items is considered tax paid by the owner. Building materials, building supplies, fixtures, and equipment are qualified if they are installed in the construction of the facility. Purchases for subsequent repair, renovation, or equipment replacement are not qualified.

A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund is due within six months after the end of the State's fiscal year. Refunds applied for after the due date are barred.

(2)       Eligibility. – A facility is eligible under this subsection if it meets all of the following conditions:

a.         It is primarily engaged in one of the industries listed in this subsection.

b.         (See editor's note for effective date) The Secretary of Commerce has certified that the owner of the facility will invest at least the required amount of private funds to construct the facility in this State. For the purpose of this subsection, costs of construction may include costs of acquiring and improving land for the facility and costs of equipment for the facility. If the facility is located in a development tier one area as defined in G.S. 143B‑437.08 the required amount is fifty million dollars ($50,000,000). For all other facilities, the required amount is one hundred million dollars ($100,000,000). In the case of a computer manufacturing facility, the owner may invest these funds either directly or indirectly through a related entity or strategic partner as those terms are defined in G.S. 105‑129.61. For the purpose of this subsection, the term "facility" has the same meaning as under G.S. 105‑129.61.

c.         If the facility is primarily engaged in financial services, securities operations, and related systems development, it satisfies all of the following conditions:

1.         It is owned and operated by the business for which the services are provided or by a related entity of that business as defined in G.S. 105‑130.7A.

2.         No part of it is leased to a third‑party tenant that is not a related entity of the business.

d.         If the facility is primarily engaged in solar electricity generating materials manufacturing, the business satisfies a wage standard at the facility. The wage standard is equal to one hundred five percent (105%) of the lesser of the average weekly wage for all insured private employers in the State and the average weekly wage for all insured private employers in the county. A business satisfies the wage standard if it pays an average weekly wage that is at least equal to the amount required by this sub‑subdivision. In making the wage calculation, the business must include any jobs that were filled for at least 1,600 hours during the calendar year.

(3)       Industries. – This subsection applies to the following industries:

a.         Air courier services. Air courier services has the same meaning as in G.S. 105‑129.2.

b.         Aircraft manufacturing. Aircraft manufacturing means the manufacturing or assembling of complete aircraft or of aircraft engines, blisks, fuselage sections, flight decks, flight deck systems or components, wings, fuselage fairings, fins, moving leading and trailing wing edges, wing boxes, nose sections, tailplanes, passenger doors, nacelles, thrust reversers, landing gear, braking systems, or any combination thereof.

c.         Bioprocessing. Bioprocessing means biomanufacturing or processing that includes the culture of cells to make commercial products, the purification of biomolecules from cells, or the use of these molecules in manufacturing.

d.         Computer manufacturing. Computer manufacturing means manufacturing or assembling electronic computers, such as personal computers, workstations, laptops, and computer servers. The term includes the assembly or integration of processors, coprocessors, memory, storage, and input/output devices into a user‑programmable final product. The term includes manufacturing or assembling computer peripheral equipment, such as storage devices, printers, monitors, input/output devices, and terminals only if the manufacture or assembly of this peripheral equipment occurs at a facility or campus at which the taxpayer also manufactures or assembles electronic computers.

e.         Reserved for future codification purposes.

f.          Financial services, securities operations, and related systems development. Financial services, securities operations, and related systems development means one or both of the following functions:

1.         Performing analysis, operations, trading, or sales functions for investment banking, securities dealing and brokering, securities trading and underwriting, investment portfolio/mutual fund management, retirement services, or employee benefit administration.

2.         Developing information technology systems and applications, managing and enhancing operating applications and databases, or providing, operating, and maintaining telecommunications networks and distributed and mainframe computing resources for investment banking, securities dealing and brokering, securities trading and underwriting, investment portfolio/mutual fund management, retirement services, or employee benefit administration.

g.         Motor vehicle manufacturing. Motor vehicle manufacturing means any of the following:

1.         Manufacturing complete automobiles and light‑duty motor vehicles.

2.         Manufacturing heavy‑duty truck chassis and assembling complete heavy‑duty trucks, buses, heavy‑duty motor homes, and other special purpose heavy‑duty motor vehicles for highway use.

3.         Manufacturing complete military armored vehicles, nonarmored military universal carriers, combat tanks, and specialized components for combat tanks.

h.         Reserved for future codification purposes.

i.          Reserved for future codification purposes.

j.          Pharmaceutical and medicine manufacturing and distribution of pharmaceuticals and medicines. Pharmaceutical and medicine manufacturing means any of the following:

1.         Manufacturing biological and medicinal products. For the purpose of this sub‑subdivision, a biological product is a preparation that is synthesized from living organisms or their products and used medically as a diagnostic, preventive, or therapeutic agent. For the purpose of this sub‑subdivision, bacteria, viruses, and their parts are considered living organisms.

2.         Processing botanical drugs and herbs by grading, grinding, and milling.

3.         Isolating active medicinal principals from botanical drugs and herbs.

4.         Manufacturing pharmaceutical products intended for internal and external consumption in forms such as ampoules, tablets, capsules, vials, ointments, powders, solutions, and suspensions.

k.         Reserved for future codification purposes.

l.          Reserved for future codification purposes.

m.        Semiconductor manufacturing. Semiconductor manufacturing means development and production of semiconductor material, devices, or components.

n.         Solar electricity generating materials manufacturing. Solar energy generating materials manufacturing means the development and production of one or more of the following:

1.         Photovoltaic materials or modules used in producing electricity.

2.         Polymers or polymer films primarily intended for incorporation into photovoltaic materials or modules used in producing electricity.

(4)       Forfeiture. – If the owner of an eligible facility does not make the required minimum investment within five years after the first refund under this subsection with respect to the facility, the facility loses its eligibility and the owner forfeits all refunds already received under this subsection. Upon forfeiture, the owner is liable for tax under this Article equal to the amount of all past taxes refunded under this subsection, plus interest at the rate established in G.S. 105‑241.21, computed from the date each refund was issued. The tax and interest are due 30 days after the date of the forfeiture. A person that fails to pay the tax and interest is subject to the penalties provided in G.S. 105‑236.

(5)       Sunset. This subsection is repealed for sales made on or after January 1, 2013.

(k)       Reports. – The Department of Revenue shall publish by May 1 of each year the following information itemized by taxpayer for the 12‑month period ending the preceding December 31:

(1)       The number of taxpayers claiming a refund allowed in subsections (a1), (g), (h), (i), (j), and (l) of this section.

(2)       The total amount of purchases with respect to which refunds were claimed.

(3)       The total cost to the General Fund of the refunds claimed.

(l)        (Repealed for purchases made on or after January 1, 2011) Aviation Fuel for Motorsports Events. – A professional motorsports racing team or a motorsports sanctioning body is allowed a refund of the sales and use tax paid by it in this State on aviation fuel that is used to travel to or from a motorsports event in this State, to travel to a motorsports event in another state from a location in this State, or to travel to this State from a motorsports event in another state. For the purposes of this subsection, a "motorsports event" includes a motorsports race, a motorsports sponsor event, and motor sports testing. A request for a refund must be in writing and must include any information and documentation the Secretary requires. A request for a refund is due within six months after the end of the State's fiscal year. Refunds applied for after the due date are barred. This subsection is repealed for purchases made on or after January 1, 2011.

(m)      Professional Motor Racing Vehicles. – A professional motorsports racing team is allowed a refund of fifty percent (50%) of the sales and use tax paid by it in this State on tangible personal property, other than tires or accessories, that comprises any part of a professional motor racing vehicle. For the purposes of this subsection, "accessories" includes instrumentation, telemetry, consumables, and paint. A request for a refund must be in writing and must include any information and documentation the Secretary requires. A request for a refund is due within six months after the end of the State's fiscal year. Refunds applied for after the due date are barred.

(n)       Analytical Services Supplies. – A taxpayer engaged in analytical services in this State is allowed a refund of sales and use tax paid by it in this State. The amount of the refund is the greater of the following:

(1)       Fifty percent (50%) of the eligible amount sales and use tax paid by it on tangible personal property that is consumed or transformed in analytical service activities. The eligible amount of sales and use tax paid by the taxpayer in this State is the amount by which sales and use taxes paid by the taxpayer in this State in the fiscal year exceed the amount paid by the taxpayer in this State in the 2006‑2007 State fiscal year.

(2)       Fifty percent (50%) of the amount of sales and use tax paid by it in the fiscal year on medical reagents.

A request for a refund must be in writing and must include any information and documentation that the Secretary requires. A request for a refund is due within six months after the end of the State's fiscal year. Refunds applied for after the due date are barred.

(o)       Eligible Railroad Intermodal Facilities. The owner or lessee of an eligible railroad intermodal facility is allowed an annual refund of sales and use taxes paid by it under this Article on building materials, building supplies, fixtures, and equipment that become a part of the real property of the facility. Liability incurred indirectly by the owner or  lessee of the facility for sales and use taxes on these items is considered tax paid by the owner or lessee. A request for a refund must be in writing and must include any information and documentation required by the Secretary. A request for a refund is due within six months after the end of the State's fiscal year. Refunds applied for after the due date are barred.  (1957, c. 1340, s. 5; 1961, c. 826, s. 2; 1963, cc. 169, 1134; 1965, c. 1006; 1967, c. 1110, s. 6; 1969, c. 1298, s. 1; 1971, cc. 89, 286; 1973, c. 476, s. 193; 1977, c. 895, s. 1; 1979, c. 47; c. 801, ss. 77, 79‑82; 1983, c. 594, s. 1; c. 891, s. 13; 1983 (Reg. Sess., 1984), c. 1097, s. 7; 1985, cc. 431, 523; 1985 (Reg. Sess., 1986), c. 863, s. 5; 1987, c. 557, ss. 8, 9; c. 850, s. 16; 1987 (Reg. Sess., 1988), c. 1044, s. 5; 1989, c. 168, s. 5; c. 251; c. 780, s. 1.1; 1989 (Reg. Sess., 1990), c. 936, s. 4; 1991, c. 356, s. 1; c. 689, s. 190.1(b); 1991 (Reg. Sess., 1992), c. 814, s. 1; c. 917, s. 1; c. 1030, s. 25; 1995, c. 17, s. 8; c. 21, s. 1; c. 458, s. 7; c. 461, s. 13; c. 472, s. 1; 1995 (Reg. Sess., 1996), c. 646, s. 6; 1996, 2nd Ex. Sess., c. 18, s. 15.7(a); 1997‑340, s. 1; 1997‑393, s. 2; 1997‑423, s. 1; 1997‑426, s. 5; 1997‑502, s. 3; 1998‑55, ss. 16, 17; 1998‑98, s. 15; 1998‑212, ss. 29A.4(a), 29A.14(i), 29A.18(b); 1999‑360, ss. 4, 5(a), (b), 9; 1999‑438, s. 14; 2000‑56, s. 9; 2000‑140, s. 92.A(c); 2001‑414, s. 1; 2001‑474, s. 7; 2003‑416, ss. 18(b)‑(e), 23; 2003‑431, ss. 2, 3; 2003‑435, 2nd Ex. Sess., s. 4.1; 2004‑110, s. 5.1; 2004‑124, s. 32B.1; 2004‑170, s. 21(a); 2004‑204, 1st Ex. Sess., s. 3; 2005‑276, ss. 7.27(a), 7.51(a), 33.12; 2005‑429, s. 2.12; 2005‑435, ss. 32(a), 33(a)‑(c), 61, 61.1; 2006‑33, s. 6; 2006‑66, ss. 24.6(a), (b), (c), 24.10(b), 24.13(b), 24A.1(a); 2006‑162, ss. 9, 27; 2006‑168, s. 3.1; 2006‑252, ss. 2.2, 2.3; 2007‑323, ss. 31.10(a), 31.20(b), 31.23(d); 2007‑345, s. 14.6(a); 2007‑491, s. 44(1)a; 2008‑107, ss. 28.22(a), 28.23(a), (b); 2008‑118, s. 3.10(a); 2008‑154, s. 1.)

Part 4.  Reporting and Payment.

§ 105‑164.15.  Secretary shall provide forms.

The Secretary shall design, prepare, print and furnish to all retailers and wholesale merchants all necessary forms for filing returns and instructions to insure a full collection from retailers and wholesale merchants and an accounting for taxes due. But the failure of any retailer or wholesale merchant to obtain or receive forms shall not relieve such taxpayer from the payment of said tax at the time and in the manner herein provided. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1998‑98, s. 50.)

§ 105‑164.15A.  Effective date of rate changes for services and items taxed at combined general rate.

(a)       Services. – The effective date of a rate change for a service taxable under this Article is administered as follows:

(1)       For a rate increase, the new rate applies to the first billing period that starts on or after the effective date. For a service billed after it is provided, the first billing period starts on the effective date. For a service billed before it is provided, the first billing period starts on the first day of the month after the effective date.

(2)       For a rate decrease, the new rate applies to bills rendered on or after the effective date.

(b)       Combined Rate Items. – The effective date of a rate change for an item that is taxable under this Article at the combined general rate is the effective date of any of the following:

(1)       The effective date of a change in the State general rate of tax set in G.S. 105‑164.4.

(2)       For an increase in the authorization for local sales and use taxes, the date on which local sales and use taxes authorized by Subchapter VIII of this Chapter for every county become effective in the first county or group of counties to levy the authorized taxes.

(3)       For a repeal in the authorization for local sales and use taxes, the effective date of the repeal. (2005‑276, s. 33.13; 2006‑162, s. 10; 2007‑323, s. 31.17(c).)

§ 105‑164.16.  Returns and payment of taxes.

(a)       General. – Sales and use taxes are payable when a return is due. A return is due quarterly or monthly as specified in this section. A return must be filed with the Secretary on a form prescribed by the Secretary and in the manner required by the Secretary. A return must be signed by the taxpayer or the taxpayer's agent.

A sales tax return must state the taxpayer's gross sales for the reporting period, the amount and type of sales made in the period that are exempt from tax under G.S. 105‑164.13 or are elsewhere excluded from tax, the amount of tax due, and any other information required by the Secretary. A use tax return must state the purchase price of tangible personal property or services that were purchased or received during the reporting period and are subject to tax under G.S. 105‑164.6, the amount of tax due, and any other information required by the Secretary. Returns that do not contain the required information will not be accepted. When an unacceptable return is submitted, the Secretary will require a corrected return to be filed.

(b)       Quarterly. – A taxpayer who is consistently liable for less than one hundred dollars ($100.00) a month in State and local sales and use taxes must file a return and pay the taxes due on a quarterly basis. A quarterly return covers a calendar quarter and is due by the last day of the month following the end of the quarter.

(b1)     Monthly. – A taxpayer who is consistently liable for at least one hundred dollars ($100.00) but less than ten thousand dollars ($10,000) a month in State and local sales and use taxes must file a return and pay the taxes due on a monthly basis. A monthly return is due by the 20th day of the month following the calendar month covered by the return.

(b2)     Prepayment. – A taxpayer who is consistently liable for at least ten thousand dollars ($10,000) a month in State and local sales and use taxes must make a monthly prepayment of the next month's tax liability. The prepayment is due on the date a monthly return is due. The prepayment must equal at least sixty‑five percent (65%) of any of the following:

(1)       The amount of tax due for the current month.

(2)       The amount of tax due for the same month in the preceding year.

(3)       The average monthly amount of tax due in the preceding calendar year.

(b3)     Category. – The Secretary must monitor the amount of State and local sales and use taxes paid by a taxpayer or estimate the amount of taxes to be paid by a new taxpayer and must direct each taxpayer to pay tax and file returns as required by this section. In determining the amount of taxes due from a taxpayer, the Secretary must consider the total amount due from all places of business owned or operated by the same person as the amount due from that person. A taxpayer must file a return and pay tax in accordance with the Secretary's direction.

(c)       Repealed by Session Laws 2001‑427, s. 6(a), effective January 1, 2002, and applicable to taxes levied on or after that date.

(d)       (Effective for taxable years beginning before January 1, 2010)  Use Tax on Out‑of‑State Purchases. – Use tax payable by an individual who purchases tangible personal property, excluding purchases of boats and aircraft, outside the State for a nonbusiness purpose is due on an annual basis. For an individual who is not required to file an individual income tax return under Part 2 of Article 4 of this Chapter, the annual reporting period ends on the last day of the calendar year and a use tax return is due by the following April 15. For an individual who is required to file an individual income tax return, the annual reporting period ends on the last day of the individual's income tax year, and the use tax must be paid on the income tax return as provided in G.S. 105‑269.14.

(d)       (Effective for taxable years beginning on or after January 1, 2010) Use Tax on Out‑of‑State Purchases. – Notwithstanding subsection (b), an individual who purchases tangible personal property, excluding purchases of boats and aircraft, outside the State for a nonbusiness purpose shall file a use tax return on an annual basis. The annual reporting period ends on the last day of the calendar year. The return is due by the due date, including any approved extensions, for filing the individual's income tax return.

(e)       Simultaneous State and Local Changes. – When State and local sales and use tax rates change on the same date because one increases and the other decreases but the combined general rate does not change, sales and use taxes payable on the gross receipts from the following periodic payments are reportable in accordance with the changed State and local rates:

(1)       Lease or rental payments billed after the effective date of the changes.

(2)       Installment sale payments received after the effective date of the changes by a taxpayer who reports the installment sale on a cash basis.  (1957, c. 1340, s. 5; 1967, c. 1110, s. 6; 1973, c. 476, s. 193; 1979, c. 801, s. 83; 1983 (Reg. Sess., 1984), c. 1097, s. 14; 1985, c. 656, s. 26; 1985 (Reg. Sess., 1986), c. 1007; 1987, c. 557, s. 6; 1989 (Reg. Sess., 1990), c. 945, s. 1; 1991, c. 690, s. 4; 1993, c. 450, s. 7; 1997‑77, s. 1; 1998‑121, s. 1; 1999‑341, s. 1; 2000‑120, s. 11; 2001‑347, s. 2.14; 2001‑414, s. 18; 2001‑427, s. 6(a); 2001‑430, s. 7; 2002‑184, ss. 10, 11;  2003‑284, ss. 44.1, 45.8; 2003‑416, s. 26; 2005‑276, s. 33.24; 2006‑162, s. 5(b); 2006‑33, s. 9; 2007‑527, ss. 11, 12; 2008‑134, s. 11.)

§§ 105‑164.17 through 105‑164.18:  Repealed by Session Laws 1993, c.  450, ss. 8, 9.

§ 105‑164.19.  Extension of time for making returns and payment.

The Secretary for good cause may extend the time for making any return under the provisions of this Article and may grant such additional time within which to make such return as he may deem proper but the time for filing any such return shall not be extended for more than 30 days after the regular due date of such return. If the time for filing a return be extended, interest at the rate established pursuant to G.S. 105‑241.21 from the time the return was due to be filed to the date of payment shall be added and paid. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1977, c. 1114, s. 10; 1985, c. 656, s. 30; 2007‑491, s. 44(1)a.)

§ 105‑164.20.  Cash or accrual basis of reporting.

Any retailer, except a retailer who sells electricity or telecommunications service, may report sales on either the cash or accrual basis of accounting upon making application to the Secretary for permission to use the basis selected. Permission granted by the Secretary to report on a selected basis continues in effect until revoked by the Secretary or the taxpayer receives permission from the Secretary to change the basis selected. A retailer who sells electricity or telecommunications service must report its sales on an accrual basis. A sale of electricity or telecommunications service is considered to accrue when the retailer bills its customer for the sale. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1983 (Reg. Sess., 1984), c. 1097, s. 15; 1998‑22, s. 7; 2001‑430, s. 8.)

§ 105‑164.21.  Repealed by Session Laws 1987, c. 622, s. 10.

§ 105‑164.21A.  Deduction for municipalities that sell electric power.

A municipality that pays the retail sales tax imposed by this Article on electricity may deduct from the amount of tax payable by the municipality an amount equal to three percent (3%) of the difference between its gross receipts from sales of electricity for the preceding reporting period and the amount paid by the municipality for purchased power and related services during that reporting period. (1983 (Reg. Sess., 1984), c. 1097, s. 12; 1989 (Reg. Sess., 1990), c. 945, s. 2.)

§ 105‑164.21B: Repealed by Session Laws 2006‑151, s. 9, effective January 1, 2007.

Part 5.  Records Required to Be Kept.

§ 105‑164.22.  Retailer must keep records.

Every retailer shall keep and preserve suitable records of the gross income, gross receipts and/or gross receipts of sales of such business and such other books or accounts as may be necessary to determine the amount of tax for which he is liable under the provisions of this Article. And it shall be the duty of every retailer to keep and preserve for a period of three years all invoices of goods, wares and merchandise purchased for resale and all such books, invoices and other records shall be open for examination at all reasonable hours during the day by the Secretary or his duly authorized agent. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1998‑98, s. 51.)

§ 105‑164.23.  Consumer must keep records.

Every consumer shall keep such records, receipts, invoices and other pertinent papers in such form as may be required by the Secretary and all such books, invoices and other records shall be open for examination by the Department of Revenue. In the event the retailer, user or consumer has imported the tangible personal property and fails to produce an invoice showing the purchase price of the tangible personal property as defined in this Article which is subject to tax or the invoices do not reflect the true or actual cost as defined in this Article, then the Secretary shall ascertain in any manner feasible the true purchase price and assess and collect the tax with interest, plus penalties, if such have accrued, on the true purchase price as determined by the Secretary. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 2001‑414, s. 19; 2002‑72, s. 17.)

§ 105‑164.24.  Separate accounting required.

Every retailer shall keep separate records disclosing sales of tangible personal property taxable under this Article and sales transactions not taxable because exempt under G.S. 105‑164.13 or elsewhere excluded from taxation. Such records shall be kept in such form as may be accurately and conveniently checked by the Secretary or his authorized agents and unless such records shall be kept the exemptions and exclusions provided in this Article shall not be allowed and it shall be the duty of the Secretary or his agents to assess a tax upon the total gross sales at the rate levied upon retail sales and if records are not kept disclosing gross sales, it shall be the duty of the Secretary to assess a tax upon an estimation of sales  based upon the best information available. (1957, c. 1340, s. 5; 1959, c. 1259, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.25.  Wholesale merchant must keep records.

Every wholesale merchant selling tangible personal property to other merchants for resale or tangible personal property the sale of which is otherwise defined as a wholesale sale under the terms of this Article shall deliver to the customer a bill of sale for each sale of such tangible personal property whether sold for cash or on terms of credit, and shall make and retain a duplicate or carbon copy of each bill of sale and shall keep a file of all such duplicate bills of sale for at least three years from the date of sale. Such bills of sale shall contain and include the name and address of the purchaser, the date of the purchase, the article purchased and the price at which the article is sold to the customer. These records shall be kept for a period of three years and shall be open for inspection by the Secretary or his duly authorized agents at all reasonable hours. Failure to comply with the provisions of this section shall subject the wholesale merchant to liability for tax upon such sales at the rate of tax levied in this Article upon retail sales. (1957, c. 1340, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.26.  Presumption that sales are taxable.

For the purpose of the proper administration of this Article and to prevent evasion of the retail sales tax, it shall be presumed that all gross receipts of wholesale merchants and retailers are subject to the retail sales tax until the contrary is established by proper records as required in this Article. It shall be prima facie presumed that tangible personal property sold by any person for delivery in this State, however made, and by carrier or otherwise, is sold for storage, use, or other consumption in this State, and a like presumption shall apply to tangible personal property delivered outside this State and brought to this State by the purchaser. (1957, c. 1340, s. 5; 1998‑98, s. 108.)

§ 105‑164.27.  Repealed by Session Laws 1961, c. 826, s. 2.

§ 105‑164.27A.  Direct pay permit.

(a)       Tangible Personal Property. – A direct pay permit for tangible personal property authorizes its holder to purchase any tangible personal property without paying tax to the seller and authorizes the seller to not collect any tax on a sale to the permit holder. A person who purchases tangible personal property under a direct pay permit issued under this subsection is liable for use tax due on the purchase. The tax is payable when the property is placed in use. A direct pay permit issued under this subsection does not apply to taxes imposed under G.S. 105‑164.4(a)(1f) or G.S. 105‑164.4(a)(4a).

A person who purchases direct mail may apply to the Secretary for a direct pay permit for the purchase of direct mail. The direct pay permit issued for direct mail does not apply to any purchase other than the purchase of direct mail.

A person who purchases tangible personal property whose tax status cannot be determined at the time of the purchase because of one of the reasons listed below may apply to the Secretary for a direct pay permit for tangible personal property:

(1)       The place of business where the property will be used is not known at the time of the purchase and a different tax consequence applies depending on where the property is used.

(2)       The manner in which the property will be used is not known at the time of the purchase and one or more of the potential uses is taxable but others are not taxable.

(b)       Telecommunications Service. – A direct pay permit for telecommunications service authorizes its holder to purchase telecommunications service and ancillary service without paying tax to the seller and authorizes the seller to not collect any tax on a sale to the permit holder. A person who purchases these services under a direct pay permit must file a return and pay the tax due monthly to the Secretary. A direct pay permit issued under this subsection does not apply to any tax other than the tax on telecommunications service and ancillary service.

A call center that purchases telecommunications service that originates outside this State and terminates in this State may apply to the Secretary for a direct pay permit for telecommunications service and ancillary service. A call center is a business that is primarily engaged in providing support services to customers by telephone to support products or services of the business. A business is primarily engaged in providing support services by telephone if at least sixty percent (60%) of its calls are incoming.

(c)       Application. – An application for a direct pay permit must be made on a form provided by the Secretary and contain the information required by the Secretary. The Secretary may grant the application if the Secretary finds that the applicant complies with the sales and use tax laws and that the applicant's compliance burden will be greatly reduced by use of the permit.

(d)       Revocation. – A direct pay permit is valid until the holder returns it to the Secretary or the Secretary revokes it. The Secretary may revoke a direct pay permit if the holder of the permit does not file a sales and use tax return on time, does not pay sales and use tax on time, or otherwise fails to comply with the sales and use tax laws. (2000‑120, s. 1; 2001‑414, s. 20; 2001‑430, s. 9; 2002‑72, s. 18; 2003‑284, s. 45.9; 2003‑416, s. 16(b); 2006‑33, s. 7.)

§ 105‑164.28.  Certificate of resale.

(a)       Seller's Responsibility. – A seller who accepts a certificate of resale from a purchaser of tangible personal property has the burden of proving that the sale was not a retail sale unless all of the following conditions are met:

(1)       For a sale made in person, the certificate is signed by the purchaser and states the purchaser's name, address, registration number, and type of business.

(2)       For a sale made in person, the tangible personal property sold is the type of property typically sold by the type of business stated on the certificate.

(3)       For a sale made over the Internet or by other remote means, the seller obtains the purchaser's name, address, registration number, and type of business and maintains this information in a retrievable format in its records.

(b)       Purchaser's Liability. – A purchaser who does not resell property purchased under a certificate of resale is liable for any tax subsequently determined to be due on the sale. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1991 (Reg. Sess., 1992), c. 914, s. 1; 2000‑120, s. 6; 2005‑276, s. 33.15.)

§ 105‑164.28A.  Other exemption certificates.

(a)       Authorization. – The Secretary may require a person who purchases tangible personal property that is exempt from tax or is subject to a preferential rate of tax depending on the status of the purchaser or the intended use of the property to obtain an exemption certificate from the Department to receive the exemption or preferential rate. An exemption certificate authorizes a retailer to sell tangible personal property to the holder of the certificate and either collect tax at a preferential rate or not collect tax on the sale, as appropriate. A person who purchases tangible personal property under an exemption certificate is liable for any tax due on the sale if the Department determines that the person is not eligible for the certificate or the property was not used as intended.

(b)       Scope. – This section does not apply to a direct pay permit or a certificate of resale. G.S. 105‑164.27A addresses a direct pay permit, and G.S. 105‑164.28 addresses a certificate of resale. (2002‑184, s. 12.)

§ 105‑164.29.  Application for certificate of registration by wholesale merchants and retailers.

(a)       Application. – To obtain a certificate of registration, a person must register with the Department. A wholesale merchant or retailer who has more than one business is required to obtain only one certificate of registration to cover all operations of the business throughout the State. An application for registration must be signed as follows:

(1)       By the owner, if the owner is an individual.

(2)       By a manager, member, or partner, if the owner is an association, a partnership, or a limited liability company.

(3)       By an executive officer or some other person specifically authorized by the corporation to sign the application, if the owner is a corporation. If the application is signed by a person authorized to do so by the corporation, written evidence of the person's authority must be attached to the application.

(b)       Issuance. – A certificate of registration is not assignable and is valid only for the person in whose name it is issued. A copy of the certificate of registration must be displayed at each place of business.

(c)       Term. – A certificate of registration is valid unless it is revoked for failure to comply with the provisions of this Article or becomes void. A certificate issued to a retailer who makes taxable sales becomes void if, for a period of 18 months, the retailer files no returns or files returns showing no sales.

(d)       Revocation. – The failure of a wholesale merchant or retailer to comply with this Article or G.S. 14‑401.18 is grounds for revocation of the wholesale merchant's or retailer's certificate of registration. Before the Secretary revokes a wholesale merchant's or retailer's certificate of registration, the Secretary must notify the wholesale merchant or retailer that the Secretary proposes to revoke the certificate of registration and that the proposed revocation will become final unless the wholesale merchant or retailer objects to the proposed revocation and files a request for a Departmental review within the time set in G.S. 105‑241.11 for requesting a Departmental review of a proposed assessment. The notice must be sent in accordance with the methods authorized in G.S. 105‑241.20. The procedures in Article 9 of this Chapter for review of a proposed assessment apply to the review of a proposed revocation. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1979, 2nd Sess., c. 1084; 1991, c. 690, s. 5; 1993, c. 354, s. 17; c. 539, s. 705; 1994, Ex. Sess., c. 24, s. 14(c); 1999‑333, s. 8; 2000‑140, s. 67(b); 2007‑491, s. 19.)

§ 105‑164.29A.  State government exemption process.

(a)       Application. – To be eligible for the exemption provided in G.S. 105‑164.13(52), a State agency must obtain from the Department a sales tax exemption number. The application for exemption must be in the form required by the Secretary, be signed by the State agency's head, and contain any information required by the Secretary. The Secretary must assign a sales tax exemption number to a State agency that submits a proper application.

(b)       Liability. – A State agency that does not use the items purchased with its exemption number must pay the tax that should have been paid on the items purchased, plus interest calculated from the date the tax would otherwise have been paid. (2003‑431, s. 4; 2004‑170, s. 22.)

Part 6.  Examination of Records.

§ 105‑164.30.  Secretary or agent may examine books, etc.

For the purpose of enforcing the collection of the tax levied by this Article, the Secretary or his duly authorized agent is hereby specifically authorized and empowered to examine at all reasonable hours during the day the books, papers, records, documents or other data of all retailers or wholesale merchants bearing upon the correctness of any return or for the purpose of making a return where none has been made as required by this Article, and may require the attendance of any person and take his testimony with respect to any such matter, with power to administer oaths to such person or persons. If any person summoned as a witness shall fail to obey any summons to appear before the Secretary or his authorized agent, or shall refuse to testify or answer any material question or to produce any book, record, paper, or other data when required to do so, such failure or refusal shall be reported to the Attorney General or the district solicitor, who shall thereupon institute proceedings in the superior court of the county where such witness resides to compel obedience to any summons of the Secretary or his authorized agent. Officers who serve summonses or subpoenas, and witnesses attending, shall receive like compensation as officers and witnesses in the superior courts, to be paid from the proper appropriation for the administration of this Article.

In the event any retailer or wholesale merchant shall fail or refuse to permit examination of his books, papers, accounts, records, documents or other data by the Secretary or his authorized agents as aforesaid, the Secretary shall have the power to proceed by citing said retailer or wholesale merchant to show cause before the superior court of the county in which said taxpayer resides or has its principal place of business as to why such books, records, papers, or documents should not be examined and said superior court shall have jurisdiction to enter an order requiring the production of all necessary books, records, papers, or documents and to punish for contempt of such order any person violating the same. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 1998‑98, s. 52.)

§ 105‑164.31.  Complete records must be kept for three years.

Every retailer, wholesale merchant or consumer as defined by this Article shall secure, maintain and keep for a period of three years a complete record of tangible personal property received, used, sold at retail or wholesale, distributed or stored, leased or rented within this State by said retailer, wholesale merchant or consumer together with invoices, bills of lading and other pertinent papers and records as may be required by the Secretary for the reasonable administration of this Article and all such records shall be open for inspection by the Secretary or his duly authorized agent at all reasonable hours during the day. (1957, c. 1340, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.32.  Incorrect returns; estimate.

In the event any retailer, wholesale merchant or consumer fails to make a return and to pay the tax as provided by this Article or in case any retailer, wholesale merchant or consumer makes a grossly incorrect return or a report that is false or fraudulent, it shall be the duty of the Secretary or his authorized agent to make an estimate for the taxable period of wholesale and/or retail sales of such retailer or wholesale merchant or of the gross proceeds of rentals or leases of tangible personal property by the retailer and to estimate the purchase price of all articles of tangible personal property imported by the consumer for use, storage, or consumption in this State and to assess and collect the tax and interest, plus penalties, if such have accrued, upon the basis of such estimate. (1957, c. 1340, s. 5; 1973, c. 476, s. 193; 2001‑414, s. 21.)

Part 7.  Failure to Make Returns; Overpayments.

§§ 105‑164.33 through 105‑164.34:  Repealed by Session Laws 1963, c.  1169, s. 3.

§ 105‑164.35.  Excessive payments; recomputing tax.

As soon as practicable after a return is filed, the Secretary shall examine it. If it then appears that the correct amount of tax is greater or less than the amount shown in the return, the tax shall be recomputed.

(1)       Excessive Payments. – If the amount already paid exceeds that which should have been paid on the basis of the tax so recomputed, the excess shall be credited or refunded to the taxpayer in accordance with the provisions of this Article.

(2)       to (5) Repealed by Session Laws 1959, c. 1259, s. 9. (1957, c. 1340, s. 5; 1959, c. 1259, s. 9; 1973, c. 476, s. 193.)

§ 105‑164.36.  Repealed by Session Laws 1959, c. 1259, s. 9.

§ 105‑164.37.  Bankruptcy, receivership, etc.

If any taxpayer subject to the provisions of this Article goes into bankruptcy, receivership or turns over his stock of merchandise by voluntary transfer to creditors, the tax liability under this Article shall constitute a prior lien upon such stock of merchandise and shall become subject to levy under execution and it shall be the duty of the transferee in any such case to retain the amount of the tax due from the first sales of such stock of merchandise and pay the same to the Secretary. (1957, c. 1340, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.38.  Tax is a lien.

(a)       The tax imposed by this Article is a lien upon all personal property of any person who is required by this Article to obtain a certificate of registration to engage in business and who stops engaging in the business by transferring the business, transferring the stock of goods of the business, or going out of business. A person who stops engaging in business must file the return required by this Article within 30 days after transferring the business, transferring the stock of goods of the business, or going out of business.

(b)       Any person to whom the business or the stock of goods was transferred must withhold from the consideration paid for the business or stock of goods an amount sufficient to cover the taxes due until the person selling the business or stock of goods produces a statement from the Secretary showing that the taxes have been paid or that no taxes are due. If the person who buys a business or stock of goods fails to withhold an amount sufficient to cover the taxes and the taxes remain unpaid after the 30‑day period allowed, the buyer is personally liable for the unpaid taxes to the extent of the greater of the following:

(1)       The consideration paid by the buyer for the business or the stock of goods.

(2)       The fair market value of the business or the stock of goods.

(c)       Assessment. – The period of limitations for assessing liability against the buyer of a business or the stock of goods of a business and for enforcing the lien against the property expires one year after the end of the period of limitations for assessment against the person who sold the business or the stock of goods. Except as otherwise provided in this section, the assessment procedures in Article 9 of this Chapter apply to a person who buys a business or the stock of goods of a business to the same extent as if the person had incurred the original tax liability. (1957, c. 1340, s. 5; 1963, c. 1169, s. 3; 1973, c. 476, s. 193; 1991, c. 690, s. 6; 1991 (Reg. Sess., 1992), c. 949, s. 2; 2000‑140, s. 67(c); 2007‑491, s. 20.)

§ 105‑164.39.  Attachment.

In the event any retailer or wholesale merchant is delinquent in the payment of the tax herein provided for, the Secretary may give notice of the amount of such delinquency by registered mail to all persons having in their possession or under their control any credits or other personal property belonging to such retailer or wholesale merchant or owing any debts to such taxpayer at the time of the receipt by them of such notice and thereafter any person so notified shall neither transfer nor make any other disposition of such credits, other personal property or debts until the Secretary shall have consented to a transfer or disposition or until 30 days shall have elapsed from and after the receipt of such notice. All persons so notified must within five days after receipt of such notice advise the Secretary of any and all such credits, other personal property or debts in their possession, under their control or owing by them as the case may be. The remedy provided by this section shall be cumulative and optional and in addition to all other remedies now provided by law for the collection of taxes due the State. (1957, c. 1340, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.40.  Jeopardy assessment.

If the Secretary is of the opinion that the collection of any tax or any amount of tax required to be collected and paid to the State under this Article will be jeopardized by delay, he shall make an assessment of the tax or amount of tax required to be collected and shall mail or issue a notice of such assessment to the taxpayer together with a demand for immediate payment of the tax or of the deficiency in tax declared to be in jeopardy including interest and penalties. In the case of a tax for a current period, the Secretary may declare the taxable period of the taxpayer immediately terminated  and shall cause notice of such finding and declaration to be mailed or issued to the taxpayer together with a demand for immediate payment of the tax based on the period declared terminated and such tax shall be immediately due and payable, whether or not the time otherwise allowed by law for filing a return and paying the tax has expired. Assessments provided for in this section shall be immediately due and payable and proceedings for the collection shall commence at once and if any such tax, penalty or interest is not paid upon demand of the Secretary, he shall forthwith cause a levy to be made on the property of the taxpayer or, in his discretion the Secretary may require the taxpayer to file such indemnity bond as in his judgment may be sufficient to protect the interest of the State. (1957, c. 1340, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.41.  Excess payments; refunds.

If upon examination of any return made under this Article, it appears that an amount of tax has been paid in excess of that properly due, then the amount in excess shall be credited against any tax or installment thereof then due from the taxpayer, under any other subsequent return, or shall be refunded to the taxpayer by the Secretary out of any funds appropriated for that purpose. (1957, c. 1340, s. 5; 1963, c. 1169, s. 3; 1967, c. 1110, s. 6; 1973, c. 476, s. 193; 1985, c. 656, s. 29; 1993, c. 257, s. 7.)

§ 105‑164.42:  Repealed by Session Laws 1959, c.  1259, s. 9.

Part 7A. Uniform Sales and Use Tax Administration Act.

§ 105‑164.42A.  Short title.

This Part is the "Uniform Sales and Use Tax Administration Act" and may be cited by that name. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42B.  Definitions.

The following definitions apply in this Part:

(1)       Agreement. – Streamlined Agreement, as defined in G.S. 105‑164.3.

(2)       Certified automated system. – Software certified jointly by the states that are signatories to the Agreement to calculate the tax imposed by each jurisdiction on a transaction, determine the amount of tax to remit to the appropriate state, and maintain a record of the transaction.

(3)       Certified service provider. – An agent certified jointly by the states that are signatories to the Agreement to perform all of the seller's sales tax functions.

(4)       Member state. – A state that has entered into the Agreement.

(5)       Person. – Defined in G.S. 105‑228.90.

(6)       Sales tax. – The tax levied in G.S. 105‑164.4.

(7)       Seller. – A person making sales, leases, or rentals of personal property or services.

(8)       State. – The term "this State" means the State of North Carolina. Otherwise, the term "state" means any state of the United States and the District of Columbia.

(9)       Use tax. – The tax levied in G.S. 105‑164.6. (2001‑347, s. 1.3; 2005‑276, ss. 33.16, 33.31.)

§ 105‑164.42C.  Authority to enter Agreement.

The Secretary is authorized to enter into the Agreement with one or more states to simplify and modernize sales and use tax administration in order to substantially reduce the burden of tax compliance for all sellers and for all types of commerce. The Secretary may act jointly with other member states to establish standards for certification of a certified service provider and a certified automated system and to establish performance standards for multistate sellers.

The Secretary is authorized to represent this State before the other member states. The Secretary may take any other actions reasonably required to implement this Part, including the joint procurement with other member states of goods and services in furtherance of the Agreement. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42D.  Relationship to North Carolina law.

No provision of the Agreement authorized by this Part invalidates or amends any provision of the law of this State. Adoption of the Agreement by this State does not amend or modify any law of this State. Implementation of a condition of the Agreement in this State must be made pursuant to an act of the General Assembly. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42E.  Agreement requirements.

The Secretary may not enter into the Agreement unless the Agreement requires each state to abide by the following requirements:

(1)       Uniform state rate. – The Agreement must set restrictions to achieve more uniform state rates through the following:

a.         Limiting the number of state rates.

b.         Limiting maximums on the amount of state tax that is due on a transaction.

c.         Limiting thresholds on the application of a state tax.

(2)       Uniform standards. – The Agreement must establish uniform standards for all of the following:

a.         The sourcing of transactions to taxing jurisdictions.

b.         The administration of exempt sales.

c.         The allowances a seller can take for bad debts.

d.         Sales and use tax returns and remittances.

(3)       Uniform definitions. – The Agreement must require states to develop and adopt uniform definitions of sales and use tax terms. The definitions must enable a state to preserve its ability to make policy choices not inconsistent with the uniform definitions.

(4)       Central registration. – The Agreement must provide a central, electronic registration system that allows a seller to register to collect and remit sales and use taxes for all signatory states.

(5)       No nexus attribution. – The Agreement must provide that registration with the central registration system and the collection of sales and use taxes in the signatory states will not be used as a factor in determining whether the seller has nexus with a state for any tax.

(6)       Local sales and use taxes. – The Agreement must provide for reduction of the burdens of complying with local sales and use taxes through one or more of the following:

a.         Restricting variances between the state and local tax bases.

b.         Requiring states to administer any sales and use taxes levied by local jurisdictions within the state so that sellers collecting and remitting these taxes will not have to register or file returns with, remit funds to, or be subject to independent audits from local taxing jurisdictions.

c.         Restricting the frequency of changes in the local sales and use tax rates and setting effective dates for the application of local jurisdictional boundary changes to local sales and use taxes.

d.         Providing notice of changes in local sales and use tax rates and of changes in the boundaries of local taxing jurisdictions.

(7)       Monetary allowances. – The Agreement must outline any monetary allowances that are to be provided by the states to sellers or certified service providers.

(8)       State compliance. – The Agreement must require each state to certify compliance with the terms of the Agreement before becoming a member and to maintain compliance, under the laws of the member state, with all provisions of the Agreement while a member.

(9)       Consumer privacy. – The Agreement must require each state to adopt a uniform policy for certified service providers that protects the privacy of consumers and maintains the confidentiality of tax information. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42F.  Cooperating sovereigns.

The Agreement authorized by this Part is an accord among individual cooperating sovereigns in furtherance of their governmental functions. The Agreement provides a mechanism among the member states to establish and maintain a cooperative, simplified system for the application and administration of sales and use taxes under the laws of each member state. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42G.  Effect of Agreement.

Entry of this State into the Agreement does not create a cause of action or a defense to an action. No person may challenge any action or inaction by a department, agency, or other instrumentality of this State, or a political subdivision of this State, on the ground that the action or inaction is inconsistent with the Agreement. No law of this State, or its application, may be declared invalid on the ground that the provision or application is inconsistent with the Agreement. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42H.  Certification of certified automated system and effect of certification.

(a)       Certification. – The Secretary may certify a software program as a certified automated system if the Secretary determines that the program correctly determines all of the following and that the software can generate reports and returns required by the Secretary:

(1)       The applicable combined State and local sales and use tax rate for a sale, based on the sourcing principles in G.S. 105‑164.4B.

(2)       Whether or not an item is exempt from tax, based on a uniform product code or another method.

(3)       Repealed by Session Laws 2006‑33, s. 12, effective June 1, 2006.

(4)       The amount of tax to be remitted for each taxpayer for a reporting period.

(5)       Any other issue necessary for the application or calculation of sales and use tax due.

(b)       Liability. – A seller may choose to use a certified automated system in performing its sales tax administration functions. A seller that uses a certified automated system is liable for sales and use taxes due on transactions it processes using the certified automated system except for underpayments of tax attributable to errors in the functioning of the system. A person that provides a certified automated system is responsible for the proper functioning of that system and is liable for underpayments of tax attributable to errors in the functioning of the system. (2000‑120, s. 2; 2001‑347, ss. 1.1, 1.3; 2005‑276, s. 33.31; 2006‑33, s. 12.)

§ 105‑164.42I.  Contract with certified service provider and effect of contract.

(a)       Certification. – The Secretary may certify an entity as a certified service provider if the entity meets all of the following requirements:

(1)       The entity uses a certified automated system.

(2)       The entity has agreed to update its program upon notification by the Secretary.

(3)       The entity integrates its certified automated system with the system of a seller for whom the entity collects tax so that the tax due on a sale is determined at the time of the sale.

(4)       The entity remits the taxes it collects at the time and in the manner specified by the Secretary.

(5)       The entity agrees to file sales and use tax returns on behalf of the sellers for whom it collects tax.

(6)       The entity enters into a contract with the Secretary and agrees to comply with all the conditions of the contract.

(b)       Contract. – The Secretary may contract with a certified service provider for the collection and remittance of sales and use taxes. A certified service provider must file with the Secretary a bond or an irrevocable letter of credit in the amount set by the Secretary. A bond must be conditioned upon compliance with the contract, be payable to the State, and be in the form required by the Secretary. The amount a certified service provider charges under the contract is a cost of collecting the tax and is payable from the amount collected.

(c)       Liability. – A seller may contract with a certified service provider to collect and remit sales and use taxes payable to the State on sales made by the seller. A certified service provider with whom a seller contracts is the agent of the seller. As the seller's agent, the certified service provider, rather than the seller, is liable for sales and use taxes due this State on all sales transactions the certified service provider processes for the seller unless the seller misrepresents the type of products it sells or commits fraud. A seller that misrepresents the type of products it sells or commits fraud is liable for taxes not collected as a result of the misrepresentation or fraud.

(d)       Audit and Review. – In the absence of misrepresentation or fraud, a seller that contracts with a certified service provider is not subject to audit on the transactions processed by the certified service provider. A seller is subject to audit for transactions not processed by the certified service provider. The State may perform a system check of a seller and review a seller's procedures to determine if the certified service provider's system is functioning properly and the extent to which the seller's transactions are being processed by the certified service provider. A certified service provider is subject to audit. (2000‑120, s. 2; 2001‑347, ss. 1.1, 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42J.  Performance standard for multistate seller.

The Secretary may establish a performance standard for a seller that is engaged in business in this State and at least 10 other states and has developed a proprietary system to determine the amount of sales and use taxes due on transactions. A seller that enters into an agreement with the Secretary that establishes a performance standard for that system is liable for the failure of the system to meet the performance standard. (2001‑347, s. 1.3; 2005‑276, s. 33.31.)

§ 105‑164.42K.  Registration and effect of registration.

Registration under the Agreement satisfies the registration requirements under this Article. A seller who registers under the Agreement within 12 months after the State becomes a member of the Agreement and who meets the following conditions is not subject to assessment for sales tax for any period before the effective date of the seller's registration:

(1)       The seller was not registered with the State during the 12‑month period before the effective date of this State's participation in the Agreement.

(2)       When the seller registered, the seller had not received a letter from the Department notifying the seller of an audit.

(3)       The seller continues to be registered under the Agreement and to remit tax to the State for at least 36 months. (2005‑276, s. 33.17.)

§ 105‑164.42L.  Databases on taxing jurisdictions.

The Secretary may develop databases that provide information on the boundaries of taxing jurisdictions and the tax rates applicable to those taxing jurisdictions. A person who relies on the information provided in these databases is not liable for underpayments of tax attributable to erroneous information provided by the Secretary in those databases. (2005‑276, s. 33.18; 2007‑244, s. 5.)

Part 8. Administration and Enforcement.

§ 105‑164.43: Repealed by Session Laws 2007‑491, s. 2, effective January 1, 2008.

§ 105‑164.43A.  (Recodified effective August 8, 2001 – See note) Certification of tax collector software and tax collector.

(a)       Recodified as § 105‑164.42H(a) by Session Laws 2001‑347, s. 1.1, effective August 8,2001. See note.

(b)       Recodified as § 105‑164.42I(a) by Session Laws 2001‑347, s. 1.1, effective August 8, 2001. See note. (2000‑120, s. 2; 2001‑347, s. 1.1.)

§ 105‑164.43B. (Recodified effective August 8, 2001 – See note) Contract with Certified Sales Tax Collector.

Recodified as § 105‑164.42I(b) by Session Laws 2001‑347, s. 1.1, effective August 8, 2001. See note. (2000‑120, s. 2; 2001‑347, s. 1.1.)

§ 105‑164.43C:  Repealed by Session Laws 2001‑347, s. 1.2, effective August 8, 2001. See note.

§ 105‑164.44.  Penalty and remedies of Article 9 applicable.

All provisions not inconsistent with this Article in Article 9, entitled "General Administration – Penalties and Remedies" of Subchapter I of Chapter 105 of the General Statutes, including but  not limited to, administration, auditing, making returns, promulgation of rules and regulations by the Secretary, additional taxes, assessment procedure, imposition and collection of taxes and the lien  thereof, assessments, refunds and penalties are hereby made a part of this Article and shall be applicable thereto. (1957, c. 1340, s. 5; 1973, c. 476, s. 193.)

§ 105‑164.44A:  Repealed by Session Laws 1991, c.  45, s. 18.

§ 105‑164.44B.  Transfer to Wildlife Resources Fund of taxes on hunting and fishing supplies and equipment.

Each fiscal year, the Secretary of Revenue shall transfer at the end of each quarter from the State sales and use tax net collections received by the Department of Revenue under Article 5 of Chapter 105 of the General Statutes to the State Treasurer for the Wildlife Resources Fund, one fourth of the amount transferred the preceding fiscal year plus or minus the percentage of that amount by which the total collection of State sales and use taxes increased or decreased during the preceding fiscal year. (1983 (Reg. Sess., 1984), c. 1116, s. 88; 1987, c. 738, s. 150; 1989, c. 752, s. 159; 1993, c. 321, ss. 290(a), 290(b); 1993 (Reg. Sess., 1994), c. 591, s. 9, c. 769, s. 27.1(a), (b).)

§ 105‑164.44C: Repealed by Session Laws 2001‑424, s. 34.15(a)(1), as amended by Session Laws 2002‑126, s. 30A.1, effective July 1, 2002.

§ 105‑164.44D.  Reimbursement for sales tax exemption for purchases by the Department of Transportation.

The amount of sales and use tax revenue that is not realized by the General Fund as the result of the sales and use tax exemption in G.S. 105‑164.13 for purchases by the Department of Transportation shall be transferred from the Highway Fund to the General Fund in accordance with this section.  This direct transfer is made in lieu of eliminating the Department of Transportation's sales and use tax exemption to alleviate the administrative and accounting burden that would be placed on the Department of Transportation by eliminating the exemption.

For the 1991‑92 fiscal year, the State Treasurer shall transfer the sum of eight million seven hundred thousand dollars ($8,700,000) from the Highway Fund to the General Fund.  The transfer shall be made on a quarterly basis by transferring one‑fourth of the annual amount each quarter.

For each fiscal year following the 1991‑92 fiscal year, the State Treasurer shall transfer the sum transferred the previous fiscal year plus or minus the percentage of that amount by which the total collection of State sales and use taxes increased or decreased during the previous fiscal year.  In each fiscal year, the transfer shall be made on a quarterly basis by transferring one‑fourth of the annual amount each quarter. (1991, c. 689, s. 322.)

§ 105‑164.44E.  (Effective April 1, 2003, until June 30, 2010) Transfer to the Dry‑Cleaning Solvent Cleanup Fund.

At the end of each quarter, the Secretary must transfer to the Dry‑Cleaning Solvent Cleanup Fund established under G.S. 143‑215.104C an amount equal to fifteen percent (15%) of the net State sales and use taxes collected under G.S. 105‑164.4(a)(4) during the previous fiscal year, as determined by the Secretary based on available data. (2000‑19, s. 1.1.)

§ 105‑164.44F.  Distribution of part of telecommunications taxes to cities.

(a)       Amount. – The Secretary must distribute part of the taxes imposed by G.S. 105‑164.4(a)(4c) on telecommunications service and ancillary service. The Secretary must make the distribution within 75 days after the end of each calendar quarter. The amount the Secretary must distribute is the following percentages of the net proceeds of the taxes collected during the quarter:

(1)       Eighteen and seventy one hundredths percent (18.70%) minus two million six hundred twenty thousand nine hundred forty‑eight dollars ($2,620,948), must be distributed to cities in accordance with this section. The deduction is one‑fourth of the annual amount by which the distribution to cities of the gross receipts franchise tax on telephone companies, imposed by former G.S. 105‑20, was required to be reduced beginning in fiscal year 1995‑96 as a result of the "freeze deduction."

(2)       Seven and seven tenths percent (7.7%) must be distributed to counties and cities as provided in G.S. 105‑164.44I.

(b)       Share of Cities Incorporated on or After January 1, 2001. – The share of a city incorporated on or after January 1, 2001, is its per capita share of the amount to be distributed to all cities incorporated on or after this date. This amount is the proportion of the total to be distributed under this section that is the same as the proportion of the population of cities incorporated on or after January 1, 2001, compared to the population of all cities. In making the distribution under this subsection, the Secretary must use the most recent annual population estimates certified to the Secretary by the State Budget Officer.

(c)       Share of Cities Incorporated Before January 1, 2001. – The share of a city incorporated before January 1, 2001, is its proportionate share of the amount to be distributed to all cities incorporated before this date. A city's proportionate share for a quarter is based on the amount of telephone gross receipts franchise taxes attributed to the city under G.S. 105‑116.1 for the same quarter that was the last quarter in which taxes were imposed on telephone companies under repealed G.S. 105‑120. The amount to be distributed to all cities incorporated before January 1, 2001, is the amount determined under subsection (a) of this section, minus the amount distributed under subsection (b) of this section.

The following changes apply when a city incorporated before January 1, 2001, alters its corporate structure. When a change described in subdivision (2) or (3) occurs, the resulting cities are considered to be cities incorporated before January 1, 2001, and the distribution method set out in this subsection rather than the method set out in subsection (b) of this section applies:

(1)       If a city dissolves and is no longer incorporated, the proportional shares of the remaining cities incorporated before January 1, 2001, must be recalculated to adjust for the dissolution of that city.

(2)       If two or more cities merge or otherwise consolidate, their proportional shares are combined.

(3)       If a city divides into two or more cities, the proportional share of the city that divides is allocated among the new cities on a per capita basis.

(d)       Share of Cities Served by a Telephone Membership Corporation. – The share of a city served by a telephone membership corporation, as described in Chapter 117 of the General Statutes, is computed as if the city was incorporated on or after January 1, 2001, under subsection (b) of this section. If a city is served by a telephone membership corporation and another provider, then its per capita share under this subsection applies only to the population of the area served by the telephone membership corporation.

(e)       Ineligible Cities. – An ineligible city is disregarded for all purposes under this section. A city incorporated on or after January 1, 2000, is not eligible for a distribution under this section unless it meets both of the following requirements:

(1)       It is eligible to receive funds under G.S. 136‑41.2.

(2)       A majority of the mileage of its streets is open to the public.

(f)        Nature. – The General Assembly finds that the revenue distributed under this section is local revenue, not a State expenditure, for the purpose of Section 5(3) of Article III of the North Carolina Constitution. Therefore, the Governor may not reduce or withhold the distribution. (2001‑424, s. 34.25(b); 2001‑430, s. 10; 2001‑487, s. 67(d); 2002‑120, s. 4; 2004‑203, s. 5(g); 2005‑276, s. 33.19; 2005‑435, s. 34(c); 2006‑33, s. 8; 2006‑66, ss. 24.1(d), (e), (f), (g); 2006‑151, s. 7; 2007‑145, s. 9(a); 2007‑323, ss. 31.2(a), (b).)

§ 105‑164.44G.  Distribution of part of tax on modular homes.

The Secretary must distribute to counties twenty percent (20%) of the taxes collected under G.S. 105‑164.4(a)(8) on modular homes. The Secretary must make the distribution on a monthly basis in accordance with the distribution formula in G.S. 105‑520 by including the taxes on modular homes with local tax revenue that is not attributable to a particular county. (2003‑400, s. 16.)

§ 105‑164.44H.  Transfer to State Public School Fund.

Each fiscal year, the Secretary of Revenue shall transfer at the end of each quarter from the State sales and use tax net collections received by the Department of Revenue under Article 5 of Chapter 105 of the General Statutes to the State Treasurer for the State Public School Fund, one‑fourth of the amount transferred the preceding fiscal year plus or minus the percentage of that amount by which the total collection of State sales and use taxes increased or decreased during the preceding fiscal year. (2005‑276, s. 7.51(b).)

§ 105‑164.44I.  Distribution of part of sales tax on video programming service and telecommunications service to counties and cities.

(a)       Distribution. – The Secretary must distribute to the counties and cities part of the taxes imposed by G.S. 105‑164.4(a)(4c) on telecommunications service and G.S. 105‑164.4(a)(6) on video programming service. The Secretary must make the distribution within 75 days after the end of each calendar quarter. The amount the Secretary must distribute is the sum of the revenue listed in this subsection. The Secretary must distribute two million dollars ($2,000,000) of this amount in accordance with subsection (b) of this section and the remainder in accordance with subsections (c) and (d) of this section. The revenue to be distributed under this section consists of the following:

(1)       The amount specified in G.S. 105‑164.44F(a)(2).

(2)       Twenty three and six tenths percent (23.6%) of the net proceeds of the taxes collected during the quarter on video programming, other than on direct‑to‑home satellite service.

(3)       Thirty‑seven and one tenths percent (37.1%) of the net proceeds of the taxes collected during the quarter on direct‑to‑home satellite service.

(b)       Supplemental PEG Channel Support. – G.S. 105‑164.44J sets out the requirements for receipt by a county or city of supplemental PEG channel support funds distributed under this subsection. The Secretary must include the applicable amount of supplemental PEG channel support in each quarterly distribution to a county or city. The amount to include is one‑fourth of twenty‑five thousand dollars ($25,000) for each qualifying PEG channel certified by the county or city under G.S. 105‑164.44J. A county or city may not receive PEG channel support under this subsection for more than three qualifying PEG channels.

The amount of money distributed under this subsection may not exceed two million dollars ($2,000,000) in a fiscal year, plus the amount of any funds returned to the Secretary in the prior fiscal year under G.S. 105‑164.44J(d). If the amount to be distributed for qualifying PEG channels in a fiscal year would otherwise exceed this maximum amount, the Secretary must proportionately reduce the applicable amount distributable for each PEG channel. If the amount to be distributed for qualifying PEG channels in a fiscal year is less than this maximum amount, the Secretary must credit the excess amount to the PEG Channel Fund established in G.S. 66‑359. For purposes of this subsection, the term "qualifying PEG channel" has the same meaning as in G.S. 105‑164.44J.

(c)       2006‑2007 Fiscal Year Distribution. – The share of a county or city is its proportionate share of the amount to be distributed to all counties and cities under this subsection. The proportionate share of a county or city is the base amount for the county or city compared to the base amount for all other counties and cities. The base amount of a county or city that did not impose a cable franchise tax under G.S. 153A‑154 or G.S. 160A‑214 before July 1, 2006, is two dollars ($2.00) times the most recent annual population estimate for that county or city. The base amount of a county or city that imposed a cable franchise tax under either G.S. 153A‑154 or G.S. 160A‑214 before July 1, 2006, is the amount of cable franchise tax and subscriber fee revenue the county or city certifies to the Secretary that it imposed during the first six months of the 2006‑2007 fiscal year. A county or city must make this certification by March 15, 2007. The certification must specify the amount of revenue that is derived from the cable franchise tax and the amount that is derived from the subscriber fee.

(c1)     Revised Certification. – If a county or city determines that the amount of cable franchise tax it imposed during the first six months of the 2006‑2007 fiscal year differs from the amount certified to the Secretary under subsection (c) of this section, the county or city may submit a new certification to the Secretary revising the amount. For distributions for quarters beginning on or after October 1, 2007, the Secretary must determine the proportionate share of a county or city based upon certifications submitted on or before October 1, 2007. For distributions for quarters beginning on or after April 1, 2008, the Secretary must determine the proportionate share of a county or city based upon certifications submitted on or before April 1, 2008. Certifications submitted after April 1, 2008, may not be used to adjust a county's or city's base amount under subsection (c) of this section.

(d)       Subsequent Distributions. – For subsequent fiscal years, the Secretary must multiply the amount of a county's or city's share under this section for the preceding fiscal year by the percentage change in its population for that fiscal year and add the result to the county's or city's share for the preceding fiscal year to obtain the county's or city's adjusted amount. Each county's or city's proportionate share for that year is its adjusted amount compared to the sum of the adjusted amounts for all counties and cities.

(e)       Use of Proceeds. – A county or city that imposed subscriber fees during the first six months of the 2006‑2007 fiscal year must use a portion of the funds distributed to it each fiscal year under subsections (c) and (d) of this section for the operation and support of PEG channels. The amount of funds that must be used for PEG channel operation and support in fiscal year 2006‑2007 is two times the amount of subscriber fee revenue the county or city certified to the Secretary that it imposed during the first six months of the 2006‑2007 fiscal year. The amount of funds that must be used for PEG channel operation and support in subsequent fiscal years is the same proportionate amount of the funds that were distributed under subsections (c) and (d) of this section and used for this purpose in fiscal year 2006‑2007.

A county or city that used part of its franchise tax revenue in fiscal year 2005‑2006 for the operation and support of PEG channels or a publicly owned and operated television station must use the funds distributed to it under subsections (c) and (d) of this section to continue the same level of support for the PEG channels and public stations. The remainder of the distribution may be used for any public purpose.

(f)        Late Information. – A county or city that does not submit information that the Secretary needs to make a distribution by the date the information is due is excluded from the distribution. If the county or city later submits the required information, the Secretary must include the county or city in the distribution for the quarter that begins after the date the information is received.

(g)       Population Determination. – In making population determinations under this section, the Secretary must use the most recent annual population estimates certified to the Secretary by the State Budget Officer. For purposes of the distributions made under this section, the population of a county is the population of its unincorporated areas plus the population of an ineligible city in the county, as determined under this section.

(h)       City Changes. – The following changes apply when a city alters its corporate structure or incorporates:

(1)       If a city dissolves and is no longer incorporated, the proportional shares of the remaining counties and cities must be recalculated to adjust for the dissolution of that city.

(2)       If two or more cities merge or otherwise consolidate, their proportional shares are combined.

(3)       If a city divides into two or more cities, the proportional share of the city that divides is allocated among the new cities on a per capita basis.

(4)       If a city incorporates after January 1, 2007, and the incorporation is not addressed by subdivisions (2) or (3) of this subsection, the share of the county in which the new city is located is allocated between the county and the new city on a per capita basis.

(i)        Ineligible Cities. – An ineligible city is disregarded for all purposes under this section. A city incorporated on or after January 1, 2000, is not eligible for a distribution under this section unless it meets both of the following requirements:

(1)       It is eligible to receive funds under G.S. 136‑41.2.

(2)       A majority of the mileage of its streets is open to the public.

(j)        Nature. – The General Assembly finds that the revenue distributed under this section is local revenue, not a State expenditure, for the purpose of Section 5(3) of Article III of the North Carolina Constitution. Therefore, the Governor may not reduce or withhold the distribution.  (2006‑151, s. 8; 2006‑66, ss. 24.1(h), (i); 2007‑145, s. 9(a); 2007‑323, ss. 31.2(a), (b); 2007‑527, s. 28; 2008‑148, ss. 1, 2.)

§ 105‑164.44J.  Supplemental PEG channel support.

(a)       Definitions. – The following definitions apply in this section:

(1)       Existing agreement. – Defined in G.S. 66‑350.

(2)       PEG channel. – Defined in G.S. 66‑350.

(3)       PEG channel operator. – An entity that does one or more of the following:

a.         Produces programming for delivery on a PEG channel.

b.         Provides facilities for the production of programming or playback of programming for delivery on a PEG channel.

(4)       Qualifying PEG channel. – A PEG channel that operates for at least 90 days during a fiscal year and that meets all of the following programming requirements:

a.         It delivers at least eight hours of scheduled programming a day.

b.         It delivers at least six hours and 45 minutes of scheduled, non‑character‑generated programming a day.

c.         Its programming content does not repeat more than fifteen percent (15%) of the programming content on any other PEG channel provided to the same county or city.

(5)       Supplemental PEG channel support funds. – The amount distributed to a county or city under G.S. 105‑164.44I(b).

(b)       Certification. – A county or city must certify to the Secretary by July 15 of each year all of the qualifying PEG channels provided for its use during the preceding fiscal year by a cable service provider under either G.S. 66‑357 or an existing agreement. The certification must include all of the following:

(1)       An identification of each channel as a public, an education, or a government channel.

(2)       The name and signature of the PEG channel operator for each channel. If a qualifying PEG channel has more than one PEG channel operator, the county or city must include the name of each operator of the PEG channel. A PEG channel operator may be included on the certification of only one county or city for each type of PEG channel that it operates.

(3)       Any other information required by the Secretary.

(c)       Use of Funds. – A county or city must use the supplemental PEG channel support funds distributed to it for the operation and support of each of the qualifying PEG channels it certifies by allocating the amount it receives equally among each of the qualifying PEG channels. A county or city must distribute the supplemental PEG channel support funds to the PEG channel operator of the qualifying PEG channel within 30 days of its receipt of the supplemental PEG channel support funds from the Department, or as specified in an interlocal agreement. If a qualifying PEG channel has more than one PEG channel operator, the county or city must distribute the amount allocated for that PEG channel equally to each PEG channel operator, or as specified in an interlocal agreement.

(d)       Errors in Certification. – If a county or city determines that it certified a PEG channel in error, the county or city must submit a revised certification to the Secretary, and the county or city must return all supplemental PEG channel support funds distributed to it as a result of the error. The Secretary must add the funds returned to the total amount of supplemental PEG channel support funds to be allocated in the following fiscal year.  (2008‑148, s. 3.)

DIVISION IX. LOCAL OPTION SALES AND USE TAXES.

§§ 105‑164.45 through 105‑164.58: Repealed by Session Laws 1971, c.  77, s. 1.

§§ 105‑165 through 105‑176.  Repealed by Session Laws 1957, c. 1340, s. 5.

§§ 105‑177 through 105‑178.  Repealed by Session Laws 1951, c. 643, s.5.

§ 105‑179.  Repealed by Session Laws 1957, c. 1340, s. 5.

§ 105‑180.  Repealed by Session Laws 1951, c. 643, s. 5.

§ 105‑181.  Repealed by Session Laws 1957, c. 1340, s. 5.

§ 105‑182.  Repealed by Session Laws 1955, c. 1350, s. 19.

§§ 105‑183 through 105‑187: Repealed by Session Laws 1957, c.  1340, s. 5.