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CHAPTER 10-59

UNIFORM ADMINISTRATION OF CERTAIN STATE TAXES

10-59-1      Application.
10-59-2      Definition of terms.
10-59-3      Notice of intent to audit defined.
10-59-4      Certificate of assessment defined.
10-59-5      Investigation and examination by secretary.
10-59-6      Penalty for failure to file return--Penalty reduced or eliminated--Interest charged for late payment--Interest tolled during appeal--Maximum interest rate for mistake of law.
10-59-6.1      Interest assessed for failure to pay taxes when taxable transactions reported.
10-59-7      Audits--Notice of intent to audit required--Consideration of papers not presented to auditor.
10-59-8      Issuance of certificate of assessment--Certificate deemed prima facie correct--Copy to taxpayer--Payment--Hearing.
10-59-9      Hearing--Request in writing--Payment required before appeal--Amended or additional statements of fact--Appeal.
10-59-10      Immediate assessment and demand for payment--Lien filed and distress warrant issued if not paid--Acceptance of bond.
10-59-11      Lien in favor of state--Preservation of lien--Priority--Lien in county where notice recorded.
10-59-12      Register of deeds--Tax lien index book--Procedure to record lien--Filing of notice of satisfaction.
10-59-13      Issuance of distress warrant--Collection and remittance of tax--Compensation for sheriff--Accounts subject to seizure.
10-59-14      Injunction for performing activity without license or permit--Petition by secretary--Contents--Issuance--Hearing.
10-59-15      Recovery of tax, penalty, or interest by action of debt.
10-59-16      Time limitation for collection--Exceptions.
10-59-17      Compliance with procedures prerequisite to jurisdiction of courts.
10-59-18      Compliance with procedures for recovery of taxes paid pursuant to certificate of assessment.
10-59-19      Recovery of overpaid taxes--Time limitation.
10-59-19.1      Repealed.
10-59-20      Collection and payment of tax not to be restrained or delayed--Person to pay taxes and seek recovery.
10-59-21      Tax recovery claim forms provided by secretary--Information provided by taxpayer--Denial of claim for failure to provide information.
10-59-22      Determination of amount of tax overpayment by secretary--Recovery credited against future taxes--Exceptions.
10-59-22.1      Request for contested case hearing upon denial of overpayment claim--Hearing and appeal procedure.
10-59-23      Recovery refund paid to taxpayer.
10-59-24      Recovery refund--Interest included--Exception.
10-59-24.1      Over-collected sales or use taxes--Purchaser notice to seller requesting refund--Response.
10-59-24.2      Notice requesting refund of over-collected sales or use taxes--Presumption of reasonable business practice.
10-59-25      Application of subsequent sections.


10-59-26      Appeal from additional tax assessment--Notification of right to appeal--Hearing examiner.
10-59-27      Reliance on written advice--Inconsistent position by department.
10-59-28      Reduction or abatement of penalty or interest.
10-59-29      Evaluation of employees or imposition of quotas from revenue amount prohibited.
10-59-30      Release of tax lien--Erroneous liens--Costs.
10-59-31      Reduction of taxes, interest, and penalty upon bona fide misunderstanding and good faith effort.
10-59-32      Electronic filing of returns, reports or remittances under certain chapters--Timeliness.
10-59-32.1      Timely filing by mail of returns, reports, or remittances under certain chapters.
10-59-33      Timely filing by mail of returns, reports or remittances for taxes specified in § 10-59-1--Exceptions .
10-59-33.1      Repealed.
10-59-33.2      Timely filing by electronic means of returns, reports or remittances for taxes specified in § 10-59-1--Exceptions.
10-59-34      Costs paid by losing party if position not justified.
10-59-35      Audit standards--List of proposed taxable items--Protest.
10-59-36      Authorizing to file returns or reports by electronic means.
10-59-37      Alternative methods for signing returns.
10-59-38      Promulgation of rules.
10-59-39      Repealed.
10-59-40      Filing of returns required whether or not gross receipts are subject to tax.
10-59-41      Prior compliance--Effect.
10-59-42, 10-59-43. Repealed.
10-59-44      Revocation or cancellation of license for failure to file return or remit tax.
10-59-45      Contested case hearing--Time for request--Appeal.
10-59-46      Preparation of list of delinquent taxpayers.
10-59-47      Notice to delinquent taxpayer before publication.
10-59-48      Unpaid taxes not subject to disclosure.
10-59-49      Publication of list of delinquent taxpayers.
10-59-50      Removal of name from list.
10-59-51      Good faith disclosure not a violation of other statutes.
10-59-52      Fee for collecting tax on behalf of another entity.
10-59-53      Definitions relating to automated sales suppression devices and phantom-ware.
10-59-54      Automated sales suppression devices and phantom-ware prohibited--Felony.
10-59-55      Civil penalty for violation of § 10-59-54.
10-59-56      Liability for taxes, penalties, and interest.
10-59-57      Seizure of automated sales suppression device or phantom-ware without warrant.


     10-59-1.   Application. The provisions of this chapter may only apply to proceedings commenced under this chapter concerning the taxes, the fees, the surcharges, or the persons subject to the taxes, fees, or surcharges imposed by, or any civil or criminal investigation authorized by, chapters 10-33A, 10-39, 10-39A, 10-39B, 10-43, 10-45, 10-45D, 10-46, 10-46A, 10-46B, 10-46E, 10-47B, 10-52, 10-52A, 10-62, 32-3, 32-3A, 32-5, 32-5B, 32-6B, 32-9, 32-10, 34-45, and 34A-13 and §§ 22-25-48, 49-31-51, and 50-4-13 to 50-4-17, inclusive.

Source: SL 1986, ch 111, § 1; SL 1989, ch 121; SL 1990, ch 99, § 1; SL 1991, ch 105, § 12; SL 1994, ch 241, § 2; SL 1995, ch 71, § 187; SL 1999, ch 61, § 1; SL 2000, ch 68, § 1; SL 2002, ch 63, § 15; SL 2002, ch 65, § 9; SL 2002, ch 68, § 15; SL 2004, ch 100, § 1; SL 2006, ch 58, § 13, eff. Apr. 1, 2006; SL 2011, ch 63, § 1; SL 2012, ch 188, § 27; SL 2017, ch 65, § 12.


     10-59-2.   Definition of terms. Terms used in this chapter mean:
             (1)      "Auditor," any employee of the Department of Revenue authorized by the secretary to perform audits of the books and records of persons subject to any of the taxes or fees provided for in § 10-59-1;
             (2)      "Secretary," the secretary of revenue;
             (3)      "Taxpayer," any person subject to any of the taxes or fees provided for in § 10-59-1.

Source: SL 1986, ch 111, § 2; SL 1990, ch 99, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.


     10-59-3.   Notice of intent to audit defined. For the purposes of this chapter, "notice of intent to audit," is any notice mailed to any taxpayer indicating that an auditor intends to perform an audit of the books and records of or, concerning a taxpayer, to determine whether the proper amount of tax, penalty or interest has been paid. The notice indicates the type of tax which is the subject of the audit and the date of commencement of the audit. The notice also contains the statement "All records, books, and documents must be prepared for presentation to the auditor on the date of commencement of the audit. All documents evidencing reduction, deduction or exemption of tax not prepared for presentation within sixty days of the date of commencement of the audit need not be considered by the auditor."

Source: SL 1986, ch 111, § 3; SL 1992, ch 102, § 4.


     10-59-4.   Certificate of assessment defined. For the purposes of this chapter, the term, certificate of assessment, means any certificate issued by the secretary indicating tax, penalty, or interest due. The certificate indicates the type of tax due, the amount of tax due, and the period of time covered by the assessment. The certificate also contains a short statement of the reasons for the assessment. The secretary shall use his or her best judgment in preparing the certificate, but error in the certificate does not relieve a taxpayer of liability for tax, penalty, or interest due under the laws of this state.

Source: SL 1986, ch 111, § 4; SL 2008, ch 37, § 129.


     10-59-5.   Investigation and examination by secretary. The secretary may investigate any taxpayer and examine records relevant to the chapters set out in § 10-59-1, including the licensing of taxpayers, the filing and correctness of returns, and the payment of taxes, interest, and penalties.

Source: SL 1986, ch 111, § 5.


     10-59-6.   Penalty for failure to file return--Penalty reduced or eliminated--Interest charged for late payment--Interest tolled during appeal--Maximum interest rate for mistake of law. Any person required to file returns or reports under the chapters set out in § 10-59-1, who fails to file a return or report which includes all taxable transactions within thirty days following the month the return or report is due is subject to an additional amount, assessed as a penalty, equal to ten percent of the tax or ten dollars whichever is greater. However, for reasonable cause shown, the secretary may reduce or eliminate such penalty.
     Any person subject to tax under the chapters set out in § 10-59-1 who fails to pay the tax within the time prescribed is subject to an interest charge for each month or part thereof for which the payment is late, which interest shall be one percent or five dollars whichever is greater for the first month, and one percent per month thereafter. If the failure to pay tax was with the intent to intentionally avoid or delay the payment of tax, the person who fails to pay the tax within the time prescribed is subject to an interest charge for each month or part thereof for which the payment is late, which interest shall be one and one-half percent or five dollars, whichever is greater. Interest is tolled during any appeal taken by the department or during any period the hearing examiner extends the time in which to submit a proposed decision or during any period the secretary fails to rule within thirty days after receiving the proposed decision.
     Penalty and interest are considered the same as tax for the purposes of collection and enforcement including liens, distress warrants, and criminal violations. Any payment received for taxes, penalty, or interest is applied first to tax, beginning with the oldest delinquency, then to interest and then to penalty.
     The secretary may, upon application of the taxpayer, establish a maximum interest rate of twenty-four percent upon delinquent taxes if the secretary determines that the delinquent payment was caused by a mistake of law and was not caused by an intent to evade the tax.

Source: SL 1986, ch 111, § 6; SL 1988, ch 124, § 7; SL 1989, ch 122; SL 1992, ch 102, § 6; SL 2015, ch 69, § 1.


     10-59-6.1.   Interest assessed for failure to pay taxes when taxable transactions reported. Any person required to file returns or reports under the chapters set out in § 10-59-1, who has reported taxable transactions as required but who has failed to pay the full amount of taxes due on such transactions at the time the transactions are reported is subject to the assessment of interest charges in accordance with the provisions contained under § 10-59-6.

Source: SL 1989, ch 117, § 72.


     10-59-7.   Audits--Notice of intent to audit required--Consideration of papers not presented to auditor. The secretary may perform audits of the books and records of any person subject to tax in the chapters set out in § 10-59-1. Unless the secretary determines that delay may jeopardize the collection of a tax, the secretary shall mail a notice of intent to audit at least thirty days before commencement of the audit to the person to be audited. The thirty-day period may be waived by mutual consent of both parties. Any documents or records required to be kept by law to evidence reduction, deduction, or exemption from tax not prepared for presentation to the auditor within sixty days from the commencement date of the audit do not have to be considered by the auditor or the secretary. However, additional pertinent papers or documents shall be considered if all the following apply:
             (1)      The additional pertinent papers or documents are material;
             (2)      There were good reasons for failure to present other pertinent papers or documents as referenced in § 10-45-45 or 10-46-43, within the prescribed time period; and
             (3)      The additional pertinent papers or documents are submitted within a reasonable time period prior to any hearing scheduled pursuant to § 10-59-9.

Source: SL 1986, ch 111, § 7; SL 1992, ch 102, § 5; SL 2007, ch 67, § 1.


     10-59-8.   Issuance of certificate of assessment--Certificate deemed prima facie correct--Copy to taxpayer--Payment--Hearing. If the secretary determines that any taxpayer owes tax, penalty, or interest, the secretary shall issue a certificate of assessment and mail a copy of the certificate to the last known address of the taxpayer by certified mail. The certificate of assessment shall be deemed prima facie correct. Any taxpayer against whom an assessment is made shall either pay the amount of the assessment or make arrangements agreeable to the secretary to pay the assessment plus additional interest required by § 10-59-6 within sixty days from the date of the certificate or request a hearing pursuant to the provisions of § 10-59-9.

Source: SL 1986, ch 111, § 8; SL 1988, ch 125; SL 2008, ch 58, § 2.


     10-59-9.   Hearing--Request in writing--Payment required before appeal--Amended or additional statements of fact--Appeal. Any taxpayer against whom a certificate of assessment is issued may request a hearing before the secretary if the taxpayer believes that the assessment is based upon a mistake of fact or an error of law. A request for hearing shall be made in writing within sixty days from the date of the certificate of assessment and shall contain a statement indicating the portion of the assessment being contested and the mistake of fact or error of law the taxpayer believes resulted in an invalid assessment. Amended or additional statements of facts or errors of law may be made not less than fourteen days prior to the hearing if the hearing examiner determines such additional or amended statements are in the interest of justice and do not prejudice either party. Hearings are conducted and appeals taken pursuant to the provisions of chapters 1-26 and 1-26D. A copy of the hearing examiner's proposed decision, findings of fact and conclusions of law shall be served on all parties when furnished to the secretary. If the secretary, pursuant to chapter 1-26D, accepts the final decision of the hearing examiner, no appeal from a final decision of the secretary upon an assessment may be taken unless any amount ordered paid by the secretary is paid or a bond filed to insure payment of such amount. However, if the final decision of the secretary, pursuant to chapter 1-26D, rejects or modifies the decision of the hearing examiner regarding the amount due on the assessment, an appeal may be taken without payment of the amount ordered to be paid and without filing of a bond. If the secretary's decision is affirmed by the circuit court, no appeal may be taken unless any amount ordered to be paid by the secretary is paid or a bond is filed to insure payment of such amount.

Source: SL 1986, ch 111, § 9; SL 1992, ch 102, § 13; SL 2001, ch 60, § 1; SL 2008, ch 58, § 1.


     10-59-10.   Immediate assessment and demand for payment--Lien filed and distress warrant issued if not paid--Acceptance of bond. If the secretary finds that the assessment or collection of any tax is jeopardized by delay, he may immediately make an assessment of the estimated tax, penalty, or interest and demand payment from the taxpayer. If the payment is not made, a lien may be filed and a distress warrant issued. The secretary may accept a bond from the taxpayer to satisfy collection until the amount of tax, penalty, or interest legally due is determined and paid.

Source: SL 1986, ch 111, § 10.


     10-59-11.   Lien in favor of state--Preservation of lien--Priority--Lien in county where notice recorded. Any tax, penalty, or interest due from a taxpayer is a lien in favor of the state upon all property and rights to property whether real or personal belonging to the taxpayer. In order to preserve the lien against subsequent mortgages, purchaser, or judgment creditors for value and without actual notice of the lien on any property situated in a county, the secretary may file with the register of deeds of the county a notice of the tax lien in such form as he determines. The priority of the lien shall be determined as of the date the notice of tax lien is received and indexed by the register of deeds. The notice of tax lien shall create a lien in each county where the notice of tax lien is recorded.

Source: SL 1986, ch 111, § 11.


     10-59-12.   Register of deeds--Tax lien index book--Procedure to record lien--Filing of notice of satisfaction. The register of deeds of each county shall prepare and keep in his office a tax lien index book which provides:
             (1)      An alphabetical list of taxpayer's names;
             (2)      Claims made by the State of South Dakota;
             (3)      The time and date the notice of lien was received;
             (4)      The amount of the lien; and
             (5)      When the lien was satisfied.
     The register of deeds shall endorse on each notice of lien the day, hour, and minute when received, index the notice in the tax lien index book and record the lien in the manner provided for recording real estate mortgages. Upon payment of the tax, penalty, and interest the secretary shall file a notice of satisfaction with the register of deeds, who shall file such notice in his office and indicate such record in the lien index. The filing and recording of the liens and satisfaction is done at no cost to the state.

Source: SL 1986, ch 111, § 12.


     10-59-13.   Issuance of distress warrant--Collection and remittance of tax--Compensation for sheriff--Accounts subject to seizure. After a notice of lien has been filed as provided in § 10-59-11, the secretary may at any time require the county treasurer to issue a distress warrant in the manner provided in chapter 10-56. Immediately upon receipt of the warrant the sheriff shall proceed to collect the tax, penalty, or interest due by seizure and sale of personal property as provided in chapter 10-56. The sheriff shall remit the amount collected to the county treasurer who shall remit the money to the Department of Revenue. For such service the sheriff may collect from the taxpayer and retain the compensation provided in chapter 10-56, but the sheriff's compensation may not be deducted from any taxes, penalty or interest collected.
     Checking, savings and similar accounts are personal property and are subject to seizure by the sheriff for the purpose of satisfying the distress warrant.

Source: SL 1986, ch 111, § 13; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.


     10-59-14.   Injunction for performing activity without license or permit--Petition by secretary--Contents--Issuance--Hearing. Any person who is required by law to obtain or maintain a license or permit issued or approved by the secretary to legally perform any act or engage in any form of business, who fails to obtain or maintain such license or permit or whose license or permit has been revoked and cancelled, may be enjoined from performing the act or engaging in the business. The secretary may petition a judge of the circuit court for the county where the licensed or permitted activity takes place for a temporary restraining order restraining that activity. The petition shall be verified by the secretary and set forth reasons why the petition should be granted. The petition shall include a certification by the secretary that a license or permit has not been obtained or maintained or has been revoked or cancelled after notice and hearing. Upon receipt of the petition and verification that the petition complies with this section, the circuit court judge shall issue a temporary restraining order restraining the person from engaging in the activity. The order shall have the effect of a temporary restraining order under chapter 21-8. With at least three days notice to the parties, a hearing shall be held within five days from the granting of the temporary restraining order. The person being restrained shall be given an opportunity to show compliance with all lawful requirements for obtaining the license or permit. If the person shows compliance with all lawful requirements for obtaining the license or permit, including any bonding requirements, the temporary restraining order shall be dissolved. If the person does not show compliance with all lawful requirements for obtaining the license or permit, he shall be enjoined from engaging in the activity until all lawful requirements for obtaining the license or permit are met or further order of the court.

Source: SL 1986, ch 111, § 14.


     10-59-15.   Recovery of tax, penalty, or interest by action of debt. In any case of failure to pay a tax, penalty, or interest when due, the amount of such tax, penalty, or interest may be recovered in action of debt.

Source: SL 1986, ch 111, § 15.


     10-59-16.   Time limitation for collection--Exceptions. Unless a proceeding, audit, action, or jeopardy assessment is commenced to determine or collect the tax, the collection thereof is barred three years from the date the return reporting the tax is filed by or on behalf of the taxpayer. There is no bar to assessment or collection of taxes, penalty, or interest in the following instances:
             (1)      Any period for which a taxpayer fails to obtain or maintain a license or permit required to engage in the activity which results in the tax obligation;
             (2)      Any period for which a taxpayer fails to file a required return or report or files a fraudulent return or report;
             (3)      Any tax, penalty, or interest first legally due and payable within three years of the date of mailing of a notice of intent to audit; or
             (4)      Any period for which a taxpayer files a return reporting tax due and fails to remit the tax reported on the return in full.

Source: SL 1986, ch 111, § 16; SL 1994, ch 104.


     10-59-17.   Compliance with procedures prerequisite to jurisdiction of courts. A taxpayer seeking recovery of tax, penalty, or interest imposed by the chapters set out in § 10-59-1 shall follow the procedure established in this chapter. No court has jurisdiction of a suit to recover such taxes, penalty, or interest unless the taxpayer seeking the recovery of tax complies with the provisions of this chapter.

Source: SL 1986, ch 111, § 17.


     10-59-18.   Compliance with procedures for recovery of taxes paid pursuant to certificate of assessment. Any taxpayer seeking recovery of taxes, penalty, or interest paid under the provisions of § 10-59-8 or 10-59-9 may only recover such tax, penalty, or interest by following the procedures found in § 10-59-9.

Source: SL 1986, ch 111, § 18.


     10-59-19.   Recovery of overpaid taxes--Time limitation. A taxpayer seeking recovery of an allegedly overpaid tax, penalty, or interest shall file a claim for recovery with the secretary, within three years from the date the tax, penalty, or interest was paid or within three years from the date the return was due, whichever date is earlier. A claim for recovery not filed within three years of the date the tax was paid or within three years of the date the return was due, whichever date is earlier, is barred.

Source: SL 1986, ch 111, § 19; SL 1989, ch 123.


     10-59-19.1.   Repealed by SL 2007, ch 68, § 1.


     10-59-20.   Collection and payment of tax not to be restrained or delayed--Person to pay taxes and seek recovery. No court may restrain or delay the collection and payment of a tax, penalty, or interest provided for in this chapter. A taxpayer shall pay the taxes when due and may seek recovery as provided in this chapter.

Source: SL 1986, ch 111, § 20.


     10-59-21.   Tax recovery claim forms provided by secretary--Information provided by taxpayer--Denial of claim for failure to provide information. The secretary shall prescribe and furnish tax recovery claim forms. A taxpayer shall provide any information requested or considered necessary by the secretary to determine the validity of a claim. The secretary may deny the claim of a taxpayer failing to provide information requested or considered necessary by the secretary to determine the validity of a claim.

Source: SL 1986, ch 111, § 21.


     10-59-22.   Determination of amount of tax overpayment by secretary--Recovery credited against future taxes--Exceptions. The secretary shall determine the amount of any tax overpayment recoverable by a taxpayer. The secretary shall credit any recovery of overpaid taxes against the future taxes of the taxpayer, except:
             (1)      A taxpayer having no future tax obligations may receive a refund; or
             (2)      A taxpayer whose recovery credit is not used within one year may receive a refund equal to the amount of recovery credit unused at the end of the one-year period.

Source: SL 1986, ch 111, § 22; SL 2009, ch 59, § 1.


     10-59-22.1.   Request for contested case hearing upon denial of overpayment claim--Hearing and appeal procedure. Any taxpayer aggrieved by the denial in whole or in part of a claim for recovery of an allegedly overpaid tax, penalty, or interest, may in writing request a contested case hearing before the secretary. The written hearing request shall be mailed to the department on or before thirty days from the date that notice of denial was mailed to the taxpayer by certified mail, return receipt requested. Any hearing shall be conducted and any appeal shall be taken pursuant to the provisions of chapters 1-26 and 1-26D.

Source: SL 2009, ch 59, § 2.


     10-59-23.   Recovery refund paid to taxpayer. A recovery refund shall be paid to an eligible taxpayer on warrants drawn by the state auditor on vouchers approved by the secretary if the secretary finds no outstanding tax liabilities in the taxpayer's name while currently or previously licensed under any of the chapters set out in § 10-59-1. If an unpaid tax liability for the taxpayer is found under any of these chapters, then the secretary is to apply the amount of the approved recovery refund to the unpaid tax liabilities discovered under other chapters cited under § 10-59-1.

Source: SL 1986, ch 111, § 23; SL 1989, ch 117, § 73.


     10-59-24.   Recovery refund--Interest included--Exception. A recovery credit or a recovery refund shall include interest at the same rate the taxpayer would be charged, except a recover of an overpayment, resulting from a taxpayer's error, may not include interest.

Source: SL 1986, ch 111, § 24.


     10-59-24.1.   Over-collected sales or use taxes--Purchaser notice to seller requesting refund--Response. No purchaser has a cause of action against a seller for over-collected sales or use taxes until the purchaser has provided written notice to a seller requesting a refund of over-collected sales or use taxes and the seller has had sixty days to respond. The notice to the seller shall contain the information necessary to determine the validity of the request.

Source: SL 2005, ch 85, § 1.


     10-59-24.2.   Notice requesting refund of over-collected sales or use taxes--Presumption of reasonable business practice. In connection with a purchaser's written notice to a seller requesting a refund of over-collected sales or use taxes pursuant to § 10-59-24.1, a seller is presumed to have a reasonable business practice, if in the collection of such sales or use taxes, the seller uses either a provider or a system, including a proprietary system, that is certified by the state or the Streamlined Sales Tax Governing Board; and has remitted to the state all taxes collected less any deductions, credits, or collection allowances.

Source: SL 2005, ch 85, § 2.


     10-59-25.   Application of subsequent sections. The provisions of §§ 10-59-26 to 10-59-33, inclusive, apply to those taxes enumerated in § 10-59-1.

Source: SL 1990, ch 100, § 1.


     10-59-26.   Appeal from additional tax assessment--Notification of right to appeal--Hearing examiner. Any taxpayer against whom additional tax has been assessed may appeal before an impartial hearing examiner. Written notification of the appeal rights shall be given by the secretary and shall accompany each certificate of assessment. The notice shall set forth the time period within which the taxpayer may file an appeal. In hearings conducted pursuant to § 10-59-9, the impartial hearing examiner may not be an employee of the Department of Revenue.

Source: SL 1990, ch 100, § 2; SL 1992, ch 102, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.


     10-59-27.   Reliance on written advice--Inconsistent position by department. Any taxpayer who has received written advice from the Department of Revenue concerning the taxability of transactions shall be allowed to rely on such advice when filing tax returns. However, the taxpayer shall maintain a copy of the advice in the taxpayer's business records. The department may not maintain a position against a taxpayer which is inconsistent with a prior written opinion issued to the same taxpayer unless rescinded by the department, by a change in statutory law or reported case law, by a change in federal interpretation in cases if the department's written advice was predicated upon a federal interpretation or by a change in material facts or circumstances relating to the taxpayer. For the purposes of this section, written advice includes municipal boundary information, and zip codes and addresses located within municipalities provided by the department.

Source: SL 1990, ch 100, § 3; SL 2002, ch 64, § 31; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.


     10-59-28.   Reduction or abatement of penalty or interest. Penalty or interest may be reduced or abated if the secretary determines such reduction or abatement is just and equitable or that the department has been negligent by unduly delaying in giving notice to the taxpayer of the assessment or the tax liability.

Source: SL 1990, ch 100, § 4.


     10-59-29.   Evaluation of employees or imposition of quotas from revenue amount prohibited. The amount of revenue collected or assessed by the department may not be used:
             (1)      To evaluate individual officers or employees; or
             (2)      To impose or suggest production quotas or goals.

Source: SL 1990, ch 100, § 5.


     10-59-30.   Release of tax lien--Erroneous liens--Costs. The department shall release any lien upon the property of a taxpayer upon payment of all tax, penalty, and interest within thirty days of payment. Liens filed in error shall be so noted on the records of the register of deeds. The department shall be liable for any court costs associated with the release of such erroneous liens.

Source: SL 1990, ch 100, § 6.


     10-59-31.   Reduction of taxes, interest, and penalty upon bona fide misunderstanding and good faith effort. The secretary may reduce or abate the taxes, interest, and penalty relating to certain transactions in cases where the taxpayer can show that there is bona fide misunderstanding of the application of the taxes to the transactions, and that the taxpayer made a good faith effort to determine the taxability of the transactions through communications with the department.

Source: SL 1990, ch 100, § 7; SL 2014, ch 66, § 1.


     10-59-32.   Electronic filing of returns, reports or remittances under certain chapters--Timeliness. The secretary may authorize any person required to file returns or reports and remit taxes or fees under chapters 10-45, 10-45D, 10-46, 10-46A, 10-46B, 10-46E, 10-52, 10-52A, 10-33A, and 10-62, to remit the taxes or fees by electronic transmission. Any person required to file returns and remit taxes who remits taxes by electronic transmission pursuant to this section, as authorized by the secretary, shall file returns by electronic means on or before the twentieth day of the month following each period. If the due date falls on a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed, the return is due on the next succeeding day that is not a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed. Remittances transmitted electronically pursuant to this section shall be made on or before the twenty-fifth day of the month following each period. Remittances are considered to have been made on the date that the remittance is credited to the bank account designated by the treasurer of the State of South Dakota. If the due date falls on a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed, the remittance is due on the next succeeding day that is not a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed.

Source: SL 1990, ch 100, § 7A; SL 1999, ch 62, § 1; SL 2011, ch 64, § 1; SL 2017, ch 65, § 13.


     10-59-32.1.   Timely filing by mail of returns, reports, or remittances under certain chapters. Any return, report, or remittance which is required to be filed under the taxes specified in chapters 10-33A, 10-45, 10-45D, 10-46, 10-46A, 10-46B, 10-46E, 10-52, 10-52A, and 10-62, is timely filed if mailed, postage prepaid, on or before the due date of the reporting period, and is received by the department. If the due date falls on a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed, the return, report, or remittance is timely filed if mailed, postage prepaid, on the next succeeding day which is not a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed. A United States Postal Service postmark is evidence of the date of mailing for the purpose of timely filing of returns, reports, or remittances. The provisions of this section do not apply to a return filed by electronic means.

Source: SL 2011, ch 64, § 2; SL 2017, ch 65, § 14.


     10-59-33.   Timely filing by mail of returns, reports or remittances for taxes specified in § 10-59-1--Exceptions. Any return, report, or remittance which is required to be filed under the taxes specified in § 10-59-1, except as provided for in §§ 10-59-32 and 10-59-32.1 and chapter 10-47B, is timely filed if mailed, postage prepaid, on or before the due date of the reporting period, and is received by the department. If the due date falls on a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed, the return, report, or remittance is timely filed if mailed, postage prepaid, on the next succeeding day which is not a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed. A United States Postal Service postmark is evidence of the date of mailing for the purpose of timely filing of returns, reports, or remittances.

Source: SL 1990, ch 100, § 8; SL 1999, ch 62, § 5; SL 2011, ch 64, § 3; SL 2013, ch 60, § 38; SL 2017, ch 65, § 15.


     10-59-33.1.   Repealed by SL 2013, ch 60, § 39.


     10-59-33.2.   Timely filing by electronic means of returns, reports or remittances for taxes specified in § 10-59-1--Exceptions. For any return, report, or remittance which is filed under the taxes specified in § 10-59-1, except as provided for in §§ 10-59-32 and 10-59-32.1 and chapters 10-43 and 10-47B, by electronic means, the return or report is timely if received on or before the due date of the reporting period. If the due date falls on a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed, the return or report is due on the next succeeding day which is not a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed. The remittances transmitted electronically pursuant to this section shall be made on or before the twenty-fifth day of the month following each period. If the due date falls on a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed, the remittance is due on the next succeeding day that is not a Saturday, Sunday, legal holiday enumerated in § 1-5-1, or a day the Federal Reserve Bank is closed.

Source: SL 2017, ch 65, § 16.


     10-59-34.   Costs paid by losing party if position not justified. If a court determines that the losing party has taken a position in an audit, hearing or appeal that was not substantially justified, the losing party shall reimburse the other party for all court costs and attorney fees associated with the hearing or appeal. The department's reimbursable costs are limited to nonemployee costs.

Source: SL 1992, ch 102, § 1.


     10-59-35.   Audit standards--List of proposed taxable items--Protest. Any audit performed by the Department of Revenue shall be in accordance with generally accepted auditing standards as published by the American Institute of Certified Public Accountants in the publications entitled Statements on Auditing Standards in effect on January 1, 2015. Prior to the issuance of a certificate of assessment, the department shall furnish the taxpayer with a proposed list of taxable items. The list shall be in writing. The department shall hold a conference with the taxpayer to review the list of taxable items, and the taxpayer may in writing protest the inclusion of any of the proposed taxable items. The protest may be included in any appeal of the department's certificate of assessment.

Source: SL 1994, ch 105; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2014, ch 67, § 1; SL 2015, ch 70, § 1.


     10-59-36.   Authorizing to file returns or reports by electronic means. The secretary may authorize any person required to file returns or reports under the chapters set forth in § 10-59-1 and any other provision wherein the secretary is obligated to administer the collection of taxes or fees to file such returns or reports by electronic means.

Source: SL 1995, ch 74, § 1.


     10-59-37.   Alternative methods for signing returns. The secretary may prescribe alternative methods for the signing, subscribing, or verifying of a return, report, statement, or other document that shall have the same validity and consequences as the actual signing by the taxpayer.

Source: SL 1995, ch 74, § 2.


     10-59-38.   Promulgation of rules. The secretary may promulgate rules pursuant to chapter 1-26 concerning:
             (1)      The procedure for filing an electronic tax return or report and for the payment of the tax due thereon;
             (2)      The establishment of alternative methods for signing, subscribing, or verifying a tax return or report;
             (3)      Determining prehearing and hearing procedures for the conduct of hearings before the secretary or the secretary's designated hearing officer.

Source: SL 1995, ch 53, § 9; SL 1995, ch 74, § 3.


     10-59-39.   Repealed by SL 2007, ch 65, § 14.


     10-59-40.   Filing of returns required whether or not gross receipts are subject to tax. Any person licensed pursuant to chapter 10-33A, 10-45, 10-45D, 10-46A, 10-46B, or 10-52A shall file the applicable tax return whether or not the person has gross receipts subject to tax.

Source: SL 2006, ch 61, § 8.


     10-59-41.   Prior compliance--Effect. Any prior collection, appropriation, or distribution of the revenue consistent with the provisions of § 10-59-40 is hereby validated, ratified, and affirmed.

Source: SL 2006, ch 61, § 9.


     10-59-42, 10-59-43.   Repealed by SL 2016, ch 68, §§ 1, 2.


     10-59-44.   Revocation or cancellation of license for failure to file return or remit tax. The secretary may, by order, revoke or cancel the license of any person licensed pursuant to chapter 10-33A, 10-45, 10-45D, 10-46, 10-46A, 10-46B, 10-46E, 10-52, 10-52A, or 10-62 and who has failed to file a return, or who has filed a return and has failed to remit the tax due the state on or before the times specified in § 10-33A-10.1, 10-45-27.3, 10-45D-10.2, 10-46-27.1, 10-46A-1.8, 10-46B-1.6, 10-46E-7, 10-52-18, 10-52A-4.2, or 10-62-4, respectively, or any other reporting period authorized.

Source: SL 2010, ch 69, § 1; SL 2017, ch 65, § 17.


     10-59-45.   Contested case hearing--Time for request--Appeal. Any person aggrieved by an order of the secretary issued pursuant to § 10-59-44 may, in writing, request a contested case hearing before the secretary. The written hearing request shall be received by the department within fourteen days from the date the order was mailed to the licensee by certified mail. If a written request for hearing is not received by the department within the time prescribed, the order becomes final. Any hearing shall be conducted and any appeal shall be taken pursuant to the provisions of chapters 1-26 and 1-26D.

Source: SL 2010, ch 69, § 2.


     10-59-46.   Preparation of list of delinquent taxpayers. The secretary of revenue may prepare a list of at least one hundred delinquent persons who owe the largest amount of tax for chapters 10-45, 10-45D, 10-46, 10-46E, 10-46A, 10-46B, 10-52, 10-52A, 10-58, and 10-33A and § 32-5B-20, and that are delinquent in the payment of tax for chapters 10-45, 10-45D, 10-46, 10-46E, 10-46A, 10-46B, 10-52, 10-52A, 10-58, and 10-33A and § 32-5B-20 to the department, if a lien has been filed against the person. The list shall include at least the top one hundred persons with total delinquent final liabilities for tax in chapters 10-45, 10-45D, 10-46, 10-46E, 10-46A, 10-46B, 10-52, 10-52A, 10-58, and 10-33A and § 32-5B-20, including penalties and interest. The list shall contain the person's name; the business name, if any; address; and the amount of total tax, penalties and interest outstanding of each delinquent person.

Source: SL 2012, ch 75, § 1.


     10-59-47.   Notice to delinquent taxpayer before publication. At least ninety days before the disclosure of the name of a delinquent person prescribed in § 10-59-46, the secretary of revenue shall mail a written notice to the delinquent person at that person's last known address informing the person that the failure to resolve the tax delinquency could result in the person's name being included in a list of delinquent persons that is published on the internet on a web site maintained by the department pursuant to §§ 10-59-46 to 10-59-51, inclusive. If the delinquent tax has not been paid within ninety days after the notice was mailed, and the person has not, since the mailing of the notice, either paid the delinquent tax or entered into a written agreement with the department for payment of the delinquency or corrected a default in an existing agreement to the satisfaction of the secretary, the secretary may disclose the tax delinquency in the list of delinquent persons.

Source: SL 2012, ch 75, § 2.


     10-59-48.   Unpaid taxes not subject to disclosure. No unpaid taxes are subject to disclosure described in § 10-59-46 if:
             (1)      A written agreement for payment exists without default between the person and the department; or
             (2)      The tax liability is the subject of an administrative hearing, administrative review, judicial review, or an appeal of any such proceedings.

Source: SL 2012, ch 75, § 3.


     10-59-49.   Publication of list of delinquent taxpayers. The list described in § 10-59-46 shall be available for public inspection at the Department of Revenue and shall be published on the internet on a web site maintained by the department.

Source: SL 2012, ch 75, § 4.


     10-59-50.   Removal of name from list. The name of a person on the list described in § 10-59-46 shall be removed within ten days after the delinquent debt payment has been processed by the department.

Source: SL 2012, ch 75, § 5.


     10-59-51.   Good faith disclosure not a violation of other statutes. Any disclosure made by the secretary of revenue in a good faith effort to comply with §§ 10-59-46 to 10-59-50, inclusive, is not a violation of any statute prohibiting disclosure of taxpayer information.

Source: SL 2012, ch 75, § 6.


     10-59-52.   Fee for collecting tax on behalf of another entity. For any tax collected by the department on behalf of another entity, the department may charge the entity an administrative fee for collecting the tax.

Source: SL 2013, ch 57, § 3.


     10-59-53.   Definitions relating to automated sales suppression devices and phantom-ware. Terms used in §§ 10-59-53 to 10-59-57, inclusive, mean:
             (1)      "Automated sales suppression device," a software program accessed through any method that falsifies the electronic records, transaction data, or transaction reports of electronic cash registers and other point-of-sale systems;
             (2)      "Electronic cash register," a device that keeps a register or supporting documents through the means of an electronic device or computer system designed to record transaction data for the purpose of computing, compiling, or processing retail sales transaction data or transaction reports;
             (3)      "Phantom-ware," a programming option embedded in the operating system or hardwired into the electronic cash register that can be used to create a false till, or eliminate or manipulate transaction data before it is entered in the original till;
             (4)      "Transaction data," information regarding items purchased by a customer, the price for each item, a taxability determination for each item, a segregated tax amount for each item subject to tax, the amount of cash or credit tendered, the amount returned to the customer in change, the date and time of purchase, the name, address, and identification number of the vendor, and the receipt or invoice number of the transaction;
             (5)      "Transaction report," a report documenting sales, tax collected, media totals, discount voids, or other transaction data of an electronic cash register for a given day or shift, or any report documenting actions of an electronic cash register.

Source: SL 2016, ch 69, § 1.


     10-59-54.   Automated sales suppression devices and phantom-ware prohibited--Felony. It is unlawful to knowingly own, sell, rent, lease, purchase, install, transfer, possess, use, access, design, manufacture, or program any automated sales suppression device or phantom-ware. A violation of this section is a Class 5 felony.

Source: SL 2016, ch 69, § 2.


     10-59-55.   Civil penalty for violation of § 10-59-54. Any person convicted of a violation under § 10-59-54 shall be assessed a civil penalty at the time of sentencing in addition to, and not in substitution for, any other penalties provided by law for the offense in the amount of ten thousand dollars for each return period in which sales data, transaction data, or transaction reports were altered. However, the civil penalty may not exceed one hundred twenty thousand dollars. The civil penalty shall be deposited in the state general fund.

Source: SL 2016, ch 69, § 3.


     10-59-56.   Liability for taxes, penalties, and interest. In addition to any civil or criminal penalty, any person violating § 10-59-54 is liable for all sales and use tax, contractor's excise tax, or any other tax imposed by title 10, including any municipal sales and use tax, and all associated penalties and interest due the state as a result of the use of an automated sales suppression device or phantom-ware.

Source: SL 2016, ch 69, § 4.


     10-59-57.   Seizure of automated sales suppression device or phantom-ware without warrant. An automated sales suppression device or phantom-ware or any cash register or device containing an automated sales suppression device or phantom-ware is contraband and may be seized without a warrant by the secretary, agents or employees of the secretary, or any law enforcement officer of this state. The disposition of any property seized under this section shall be conducted pursuant to chapter 23A-37.

Source: SL 2016, ch 69, § 5.


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