ARIZONA TAX UPDATE 2014

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1 ARIZONA TAX UPDATE 2014 IN THIS ISSUE Sales Tax Simplification: Delayed Implementation Income Tax Updates OVERVIEW The following update provides an overview of Arizona tax developments that occurred in 2014, with a focus on the year s tax legislation and court cases. We trust that you will find this annual compilation of Arizona tax developments useful and interesting. Past editions of our Arizona Tax Update are also available on our website at Property Tax Updates Other Tax Updates SALES TAX SIMPLIFICATION: DELAYED IMPLEMENTATION In 2013, Governor Jan Brewer signed House Bill 2111, Arizona s transaction privilege (sales) tax simplification bill. The legislation was initially set to go into effect on January 1, 2015; however, certain major aspects of the reform bill are being delayed until The Department of Revenue decided to delay the implementation of the single point of administration provisions until January 1, These provisions call for a single online portal where taxpayers could access all necessary state and city tax licenses; file a single return for all state, county, and city sales taxes; and pay all state, city, and county sales taxes. Citing the scale and complexity of programming required to develop the portal, the Department of Revenue announced that the 18 non-program cities (generally, larger cities such as Phoenix, Mesa, Scottsdale, Chandler, Peoria, and Glendale) will continue to license and collect sales tax from their taxpayers until January 1, 2016, when the Department of Revenue will take over. The Department of Revenue also set the following internal deadlines for the implementation of the single point of administration: BEIJING BRUSSELS CENTURY CITY CHICAGO LONDON LOS ANGELES NEW YORK PALO ALTO PHOENIX WASHINGTON July 1, 2015: New joint tax application with geo-coding October 1, 2015: o Enhance the AZTaxes.gov e-file system o Release new forms for filing monthly sales tax returns, allowing taxpayers to report data by business location o Implement bulk filing capabilities so that taxpayers can file by business location o Generate location-based reporting as required by cities October 2015 December 2015: Implement an electronic license renewal process for all taxpayers, including non-program city taxpayers Implementation of the single-audit and contracting classification changes went into effect January 1, Under the single-audit provision, a taxpayer will only be subject to one audit for all state, city, and county sales taxes, regardless of whether the audit is conducted by the Department of Revenue or by a city. Revenue will also be responsible for training all state and city auditors. Finally, all appeals will be directed to the Department of Revenue, and the Municipal Tax Hearing Office will be eliminated.

2 The general structure of the prime contracting classification under the sales tax simplification reforms remains unchanged. However, the following changes went into effect on January 1, 2015: Service contractor exemption. Starting January 1, 2015, the gross proceeds of sales or gross income derived from a contract for the maintenance, repair, or replacement of existing property is exempt from sales tax under the prime contracting classification. Building materials sold to service contractors on exempt projects are taxable. Project-specific exemption certificates. The Department of Revenue will be required to issue project-specific exemption certificates that contractors can use to purchase building materials tax free. To qualify for a certificate, the contractor: o Must work on a job that is in the control of a taxable prime contractor o May only use the certificate for material that will be incorporated into a taxable construction project o May not have a delinquent tax balance o Must submit documentation demonstrating that it meets these conditions to the Department Pre-construction services exemption. As of January 1, 2015, gross receipts attributable to design-phase and professional services no longer need to be contained in a separate contract in order to be exempt from sales tax; rather, they only need to be stated separately from the construction services in the contract. Owner-builder classification. This rarelyused classification found in A.R.S is repealed as of January 1, LEGISLATIVE UPDATES Senate Bill 1301, Chapter 245. Legislature slips some substantive changes into a bill making technical corrections. Among the numerous technical changes made by this bill, the Arizona Legislature made three substantive changes to sales and use tax provisions. First, the bill provides guidance regarding the exemption certificates that contractors must obtain for each project where they are entitled to purchase building materials tax free. The provisions in this bill differ somewhat from the provisions in House Bill Second, the bill amends A.R.S , enacted in 2014, to specify that the sales and use tax exemption for destination management companies does not extend to transactions that are not part of a qualified destination management services contract. Third, this bill extends the state and local tax exemption on proceeds from renting real property for leases between affiliated companies, businesses, persons, or reciprocal insurers to include leases between members of an individual s family or persons who have ownership or control of a business entity. Senate Bill 1331, Chapter 121. Changes to a city or town s tax code must be reflected in the official copy of the Model City Tax Code. This bill specifies that any changes to a city or town s tax code resulting in a new or different tax rate that are not reflected in the official copy of the Model City Tax Code are void and have no effect. The official copy of the Model City Tax Code is kept on file with the Department of Revenue. The bill also clarifies that a change resulting in a new or different tax rate includes the adoption or repeal of any model or local option and any other change that increases the amount of tax a taxpayer must pay to the city or town. This bill is retroactive to the adoption of the Model City Tax Code on July 1, Senate Bill 1413, Chapter 7. Sales and use tax exemption for sales of electricity or natural gas to a manufacturer. This bill creates a tax exemption for the purchase price of electricity or natural gas by a business principally engaged in manufacturing or smelting if at least 51% of the electricity or natural gas is used in those operations. Under this bill, principally engaged means that at least 51% of the taxpayer s business is manufacturing or smelting. For purposes of this exemption, processing, fabricating, job printing, mining, electricity generation, and the operation of a restaurant are not considered manufacturing. The bill also allows cities and towns to add the exemption, but adding the exemption is not required. House Bill 2046, Chapter 43. Use tax exemption for out-of-state businesses and employees in Arizona during a disaster. Effective January 1, 2015, this bill provides that out-of-state businesses, temporarily in Arizona for the sole purposes of assisting with disaster recovery efforts, are not required to pay state or local use taxes on any infrastructure brought temporarily into Arizona for or during a disaster period. For purposes of the exemption, infrastructure is: 1) property or equipment owned or used by communications networks; 2) 2

3 electric generation, transmission, and distribution systems; 3) gas distribution systems; 4) water pipelines; 5) public roads and bridges; and 6) related support facilities that serve multiple customers or Arizona citizens. The bill also exempts these businesses, and persons in the state to assist with disaster recovery efforts, from Arizona income and property taxes. House Bill 2283, Chapter 139. Changes to return filing dates. If a taxpayer chooses to file a paper return rather than to file electronically, the return is now delinquent if it is not received by the Department of Revenue on or before the second to last business day of the month. This is the same due date for taxpayers filing electronically. Under the old law, returns were not delinquent if they were either received by the second to last business day of the month or postmarked by the 25th day of that month. House Bill 2285, Chapter 54. Updates to definition of coal sales under the retail classification. This bill clarifies that the transfer of title or possession of coal from the owner or operator of a power plant to a person in the business of refining coal is not a sale if two requirements are met: 1) the transfer is for purposes of refining the coal; and 2) title or possession of the coal is transferred back to the owner or operator of the power plant after the refining process is completed. House Bill 2288, Chapter 141. Reduces sales and use tax reporting requirements effective. Effective January 1, 2015, this bill increases the maximum estimated annual sales and use tax liability that permits filing an annual return from $500 to $2,000. The bill also increases the estimated liability range permitting quarterly filing of sales and use tax returns from between $500 and $1,250 to between $2,000 and $8,000. House Bill 2389, Chapter 263. Acceptance of digital signatures; e-filing; sourcing rules; transaction privilege licensing changes; new exemptions under restaurant and nonexempt food sales classifications; updates to prime contracting classification; changes to procedures involving municipal sales and use taxes. Digital signatures and e-filing. Effective as of October 1, 2014, the Department of Revenue may accept digital or electronic signatures on tax returns, statements, and other documents. Additionally, this bill provides that starting January 1, 2015, all taxpayers required to file state, county, or city transaction privilege tax returns may file those returns electronically. Taxpayers conducting business at two or more locations, or under two or more business names, are required to file electronically. Previously, taxpayers with a prior year s TPT liability of $1 million or more were required to pay electronically but there was no mechanism for electronic filing. NOTE: The on-line portal for city, county, and state TPT reporting and payment has been delayed by the Department of Revenue until January 1, See the note at the start of this section for further details. Sourcing rules. The bill clarifies that the new sourcing rules in A.R.S , passed in 2013, apply to municipal sales taxes as well as city and county taxes. Transaction privilege tax licensing. Under this bill, a taxpayer must apply to the Department of Revenue for annual state and municipal sales tax licenses. The state licenses will cost $12 and have no renewal fee; however, the municipal licenses may cost up to $50 per city with an annual renewal fee of up to $50. Additionally, businesses must have a municipal privilege tax license for all businesses operating in two or more locations under two or more names, even if the businesses will file a consolidated return. Additionally, effective January 1, 2015, taxpayers who continue in business without timely renewing their municipal privilege tax licenses will face a civil penalty of $25 per jurisdiction. Exemption for certain food sales. Under this bill, restaurants that contract with the Department of Economic Security and sell food and drinks at low or reduced prices to eligible elderly, disabled, or homeless persons are exempt from transaction privilege tax. Additionally, these sales are not subject to tax under A.R.S covering nonexempt food sales. These exemptions also apply at the municipal level. Prime contracting. Effective January 1, 2015, prime contractors must obtain and provide to their subcontractors certificates allowing the tax-free purchase of building materials for each project where the prime contractor is subject to the prime contracting tax. Additionally, this bill creates tax exemptions for: 1) the gross sales or income attributable to a written contract for design-phase services or professional services if the terms and conditions are stated apart from the terms and conditions for construction services; and 2) the gross 3

4 proceeds or income derived from a contract with the owner of real property or the improvements on real property for the maintenance, repair, replacement, or alteration of the property, as long as the contract is not also for modification activities that exceed a de minimis amount. For purposes of this exemption, a modification is defined as construction, improvement, movement, wreckage, or demolition. The second exemption also applies at the municipal level. Municipal sales and use taxes. This bill makes several changes to the collection and audit procedures applicable to municipal sales and use taxes. First, effective January 1, 2015, the Department of Revenue will collect and administer any transaction privilege taxes or related taxes imposed by cities and towns. Second, all audits of transaction privilege taxes and related taxes whether state or municipal will be administered by the Department of Revenue according to its standard audit manual. The bill prohibits trained and authorized auditors from representing taxpayers in any tax matter. Finally, the bill provides that the Municipal Tax Hearing Office will hear appeals for all audits and assessments initiated prior to January ; after that date, appeals of audits and assessments will be heard pursuant to A.R.S House Bill 2415, Chapter 228. New prime contracting sales tax deduction for waste facilities. This bill creates a sales tax deduction for the proceeds from constructing mixed solid waste processing facilities located at municipal landfills. The purpose of the facilities must be for recycling solid waste or producing renewable energy from the landfill waste. The deduction is retroactive to January 1, House Bill 2546, Chapter 174. No municipal sales tax on alarm monitoring services. Effective January 1, 2015, this bill prohibits municipalities from imposing sales tax on alarm system monitoring services. House Bill 2701, Chapter 276. New sales and use tax exemption for sales to health sciences institutions. This bill adds an exemption from use tax and the transaction privilege tax under the retail and job printing classifications for the sale of tangible personal property to a qualifying health sciences educational institution. A qualifying health sciences educational institution is defined as an entity recognized as an Internal Revenue Code 501(c)(3) nonprofit that solely provides graduate and postgraduate education in health sciences. Health sciences is defined as medicine, nursing, physician s assistant studies, pharmacy, physical therapy, occupational therapy, biomedical sciences, podiatry, clinical psychology, cardiovascular science, nurse anesthesia, dentistry, optometry, and veterinary medicine. The bill went into effect on January 1, COURT DECISIONS KLP Enterprises, Inc. v. Ariz. Department of Revenue, TX (Ariz. Ct. App. Oct. 16, 2014). Certain services provided to farmers are subject to tax under the prime contracting classification as landscaping services. In this case, the taxpayer provided certain services to farmers, including removing obsolete orchards, laser leveling of fields, excavating dirt, installing and repairing dirt berms, disking fields, rebuilding and reshaping field borders, and removing soil from irrigation ditches. The taxpayer did not collect sales taxes for the performance of these services, relying on a now-expired regulation, Arizona Administrative Code (A.A.C.) R , that exempted work performed on improved farm land for purposes of agricultural production from the prime contracting tax. The Arizona Court of Appeals held that the regulation in question had been superseded by a later enacted statute, A.R.S (J), which subjected landscaping activities to the prime contracting tax. The court also found that the services performed by the taxpayer fell within the plain language of the statute defining landscaping activities. Additionally, the court denied the taxpayer s estoppel argument, holding that the taxpayer could not meet any of the four requirements. The court said that the Department of Revenue s failure to repeal or amend A.A.C R was not an affirmative act to which estoppel would apply. The court also found that the taxpayer did not demonstrate that its reliance on the regulation was reasonable. Third, the court found the taxpayer had not demonstrated that the Department of Revenue s actions would have caused the taxpayer to change its position. Finally, and most significantly, the court stated that failing to assess the taxpayer would harm the public interest because the public is harmed when businesses do not self-report or are incorrectly self-reporting tax. 4

5 INCOME TAX 2014 LEGISLATIVE UPDATES Senate Bill 1081, Chapter 68. Changes to requirements to claim income tax credit for excise taxes. Effective January 1, 2015, taxpayers claiming the income tax credit for increased excise taxes paid must have: 1) a valid social security number; and 2) a valid social security number or individual taxpayer identification number issued by the IRS for the claiming taxpayer s spouse and any qualifying children. Senate Bill 1300, Chapter 223. Conformity with the Internal Revenue Code. This bill provides for conformity with the Internal Revenue Code retroactive to January 1, The bill does not provide for complete uniformity in earlier years. Senate Bill 1301, Chapter tax corrections; Arizona adjusted gross and taxable income; long-term health savings accounts. In addition to technical corrections, this bill made numerous changes to the additions and subtractions required to calculate Arizona adjusted gross income for individuals and Arizona taxable income for corporations. The bill also requires administrators of long-term health savings accounts to make annual reports to the Department of Revenue. Senate Bill 1326, Chapter 120. Creation of new donation funds. This bill creates the Sustainable State Parks and Roads Fund. Taxpayers are able to contribute any portion of their refund or make a separate contribution to the fund. Senate Bill 1484, Chapter 8. New income tax credit for manufacturers investing in renewable energy. This bill adds a new income tax credit for certain investments in new renewable energy facilities that produce energy for self-consumption and use renewable energy resources, if that energy will be used primarily for manufacturing. To claim the credit, the taxpayer must meet the following three requirements: 1) investment of at least $300 million in new renewable energy facilities in Arizona; 2) at least 90% of the energy produced by the facility is for self-consumption within Arizona; and 3) the power is used primarily for manufacturing. The credit is equal to $1 million per year for five years for each facility, up to a maximum of $5 million per year. House Bill 2046, Chapter 43. Income tax exemption for out-of-state businesses and employees in Arizona during a disaster. Effective January 1, 2015, this bill exempts out-of-state businesses and individuals, temporarily in Arizona for the sole purposes of assisting with disaster recovery efforts, from requirements to file, remit, withhold, or pay Arizona income tax. This bill also provides exemptions for certain sales and property taxes related to disaster relief efforts. House Bill 2272, Chapter 168. Changes to certain tax credits. Credit for increased research activities. Effective January 1, 2015, under this bill, a taxpayer can apply to the Department of Revenue for certification of additional income tax credits for increased research activities. The bill also requires that certification must be received before taxpayers can claim the credit. Quality jobs tax credit. This bill amends the Quality Jobs Tax Credit to allow taxpayers to claim the credit in years two and three when a qualifying employee leaves and is replaced with another qualifying employee. This change is retroactive to January 1, Angel investor credit. The bill extends the time period for qualified investors to apply for the Angel Investor Credit from 30 days to 90 days. It also doubles the maximum investment amount eligible for the credit from any one investor from $250,000 to $500,000. Finally, the bill extends the life of credit for an additional five years, from June 30, 2016 to June 30, Credit for investment in a qualified small business. The bill extends the life of this credit by five years, from December 31, 2019 to December 31, House Bill 2823, Chapter 278. Changes to student tuition organization scholarships. This bill removes some of the restrictions on the students who qualify for student tuition organization scholarships funded by tax-credit eligible contributions from corporations and insurance companies. The bill is retroactively effective to July 1, House Bill 2377, Chapter 10. Arizona income tax brackets. This bill provides that for the 2015 tax year, Arizona s income tax brackets will be indexed for inflation. 5

6 2014 COURT DECISIONS Harris Corp. v. Ariz. Department of Revenue, 1- CA-TX (Ariz. Ct. App. Nov. 26, 2013). The definition of business income in A.R.S (1) includes both a transactional and functional test; liquidation exception rejected. The taxpayer challenged the Department of Revenue s treatment of the gain from the sale of all the stock of a subsidiary as business income. The taxpayer contended that the dispositions were nonbusiness income. The court of appeals held that income is business income under A.R.S (1) if it satisfies either of the two clauses in the statute. Thus, business income is income arising from transactions and activity in the regular course of the taxpayer s trade or business (the transactional test). Business income is also income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer s regular trade or business operations (the functional test). Also, relying on its interpretation of A.R.S (1), the court of appeals held that there is no liquidation exception from business income for the proceeds from the final disposition of assets because such an interpretation could not be reconciled with the functional test, which requires the court to look beyond the regularity of a transaction and to consider whether the use or disposition of the property forms an integral part of the taxpayer s business. First Data Corp. v. Ariz. Department of Revenue, 1-CA-TX (Ariz. Ct. App. Nov. 26, 2013). IRC Section 338 election gave rise to business income; court again rejects the liquidation exception to the functional test. In this case, decided the same day as Harris Corp., the court applied its interpretation of A.R.S (1) to a sale of stock by the taxpayer. The taxpayer had elected to treat this sale as a hypothetical sale of assets pursuant to Internal Revenue Code Section 338(h)(10). The court held that under the functional test for business income, which asks if the acquisition, management, or disposition of property constituted an integral part of the taxpayer s business operations, the hypothetical sale qualified as Arizona business income. The court also rejected the liquidation exception to the functional test. Home Depot U.S.A., Inc. v. Ariz. Department of Revenue, 1-CA-TX (Ariz. Ct. App. Dec. 5, 2013). Intellectual property holding company unitary with taxpayer. The taxpayer challenged the tax court s ruling that it needed to include the income of its subsidiary, a company that held and managed the taxpayer s intellectual property assets, on its combined Arizona income tax return. The court held that, despite the fact that the [t]he two companies do not share headquarters, books and records, software systems, bank accounts, purchasing, employees, officers or directors, the activities of the two companies were substantially interdependent and required unitary treatment. The court found that the subsidiary s management of the taxpayer s trademarks was an integral component of [the taxpayer s] delivery of products to its customers, thus satisfying the test for unitary treatment set forth in Ariz. Department of Revenue v. Talley Industries, Inc., 182 Ariz. 17 (Ariz. Ct. App. 1994). PROPERTY TAX 2014 LEGISLATIVE UPDATES Senate Bill 1352, Chapter 249. Amendments to property valuations and changes to procedures. This bill allows an assessor to amend the valuation of property within 60 days of mailing the original notice of valuation, if the assessor discovers that property characteristic data applicable to a grouping of properties delineated by neighborhood or classification resulted in an incorrect opinion of value. It also allows a taxpayer whose property is destroyed after the assessor closes the tax rolls to file a notice of claim pursuant to A.R.S to prorate the value of property from the date of destruction. The value of the property will then be prorated from the lien date to the date of destruction. Under the former law, the value was fixed from the date of destruction. The due date of a petition for an assessor to review an improper valuation or classification is changed to within 60 days of the postmark date of the notice or amended notice of valuation, eliminating the assessor s option to deliver by other means and adding the date of the amended notice. The interest rate for refunds is now set by the Department of Revenue pursuant to A.R.S , which ties the rate to the federal short-term rate, set monthly by the IRS, plus three percent. Previously, interest was calculated at the statutory rate of 10%. Additionally, the bill limits delivery of a notification of a proposed correction that increases the full cash value or changes the legal classification of the property to certified mail, return receipt requested. Taxpayers may now appeal any valuation or legal classification as provided by the section. The bill clarifies that any alleged error, which was already 6

7 the subject of a notice of proposed correction or notice of claim, can be adjudicated as part of the administrative or judicial appeal for the affected tax year, without requiring parties to first exhaust their administrative appeal remedies. Finally, the bill prohibits an independent review of the overall valuation or legal classification of property that is not the result of an error as defined in A.R.S and limits correction of errors to the valuation of real property that has not been issued a certificate of purchase. House Bill 2046, Chapter 43. Property use tax exemption for out-of-state businesses and employees in Arizona during a disaster. This bill, effective January 1, 2015, provides that out-of-state businesses that are temporarily in Arizona for the sole purpose of assisting with disaster recovery efforts are not subject to property tax on property brought temporarily into the state. The bill also provides for similar exemptions for income and sales and use taxes. House Bill 2141, Chapter 133. Consolidation of common area parcels. This bill requires county assessors to automatically consolidate common area parcel combinations within the same taxing district. A common area is generally property owned by a homeowners association or similar organization for the use and enjoyment of member property owners. House Bill 2287, Chapter 205. Changes to right to redeem and lien sales; civil penalties related to reclassification. This bill requires persons bringing action to foreclose the right to redeem to name the county treasurer as a party to the action. It also allows the sheriff to sell in a lien sale the personal property to pay unpaid taxes, even if the highest bid is insufficient to pay the outstanding taxes. Finally, the bill eliminates the civil penalty if ownership of the property has changed after the county treasurer has given notification to a property owner that it has been reclassified as class four due to the property owner s non-responsiveness. House Bill 2395, Chapter 209. Changes to procedure for annual estimate on funds needed by school districts. This bill changes the procedures for how county school superintendents prepare and file their estimates for the money required by the district for the coming year under the budget adopted by the district s governing board. It also provides that the Property Tax Oversight Commission shall now review the accuracy of the tax levy and rates prescribed by A.R.S If a school district disputes the commission s finding that the tax levy and rate are incorrect, the district may request a hearing before the commission. House Bill 2403, Chapter 264. Limitations on value of real property with abandoned renewable energy equipment. This bill adds Article 11, which limits the assessed value on real property leased by an owner to a tenant who utilized renewable energy equipment on the property but defaulted on the lease and abandoned the equipment. The assessed value of property under this section is limited to the greater of the total lease payments collected by the property owner during the tax year or the assessed value of the leased property if it were classified as Class Two property. It also defines certain terms, including full cash value, depreciation, and original cost, used in valuing renewable energy equipment for property tax purposes COURT DECISIONS Penn Racquet Sports, Inc. v. Maricopa County, 1- CA-TX (Ariz. Ct. App. Dec. 10, 2013). Inclusion of certain valuation factors in valuation table is not an error subject to relief under error correction statute. In this case, the taxpayer appealed a summary judgment denying relief under the error correction statute for valuation of its plant property. The taxpayer alleged that the Department of Revenue erred by including valuation factors in the property tax manual s valuation tables that trendedup Class One property, and that the assessor erred by using those valuation tables to assess the property. The court held that the Department s alleged error was not an objectively verifiable error that does not require the exercise of discretion, opinion or judgment, and as such did not qualify for relief under A.R.S , the error correction statute. OTHER TAXES 2014 LEGISLATIVE UPDATES-LUXURY TAXES Senate Bill 1180, Chapter 110. Changes to the definitions of tobacco products and cider, and to filing requirements. This bill changes the definition of tobacco products to cigarettes, smoking tobacco, snuff, chewing tobacco, cavendish, plug, or twist tobacco, and cigars, as defined in , paragraphs 5-9. The definition of cider is also updated to include ciders made from pears and other 7

8 pome fruits, in addition to apples. A.R.S This bill adds wholesalers of alcoholic ciders to the list of taxable entities, and removes wholesalers of vinous liquors from that list. A.R.S However, wholesalers of cider as defined in A.R.S are exempt from tax and the other requirements of this section. A.R.S House Bill 2674, Chapter 160. Legislature makes significant updates to luxury tax regime for tobacco products. Payment and filing requirements changed and penalties increased. Effective January 1, 2015, any distributor that remits taxes on tobacco products other than cigarettes must pay that tax using monies immediately available to the state on the date of transfer. Electronic payments are permissible only with the approval of the state treasurer. Additionally, as of January 1, 2015, distributors are required to file electronic reports and returns using a new electronic filing program developed by the Department of Revenue A.R.S (B)-(C). Civil penalties are imposed on any taxpayer required to pay by electronic funds transfer, who fails to do so, starting with the July 1, 2015 reporting period, unless the failure is due to reasonable care and not willful neglect A.R.S (O). Penalties for the failure to file a return or report in the time and manner required by Titles 42 or 43 are increased to $500 per return or report. A.R.S (K). Under prior law, penalties were only imposed on taxpayers required to file a return and were capped at $500 total. Refunds based on breakage or spoilage. Under this bill, luxury tax refunds will be granted if proof is submitted to the Department of Revenue that the luxury is unfit for sale due to breakage or spoilage. Proof must be submitted within six months of the date the luxury was received by the distributor or within two months of when the luxury was returned to the distributor, whichever comes later. Interest is calculated 60 days after the Department of Revenue receives the claim for refund. Breakage is defined as damage to the outer wrapping or container of the product. Spoilage is the mutilation of the product or its expiration. A.R.S (A)-(D). Changes to licensing requirements and procedures. A.R.S Licensing fees are now due for each business location listed in the license application, including when a current licenseholder updates an application by adding or replacing business locations. The fee is $25 per location. Potential licensees with controlling interests in more than one business requiring licensing will only need to submit one application. Licenses are nontransferrable, including during sale, liquidation, insolvency, and bankruptcy. If a licensed business stays open in one of these situations, the trustee or other appointee must obtain a license in his or her name. Licensees must re-apply for a new license if they change the legal status or structure of their entity. Licenses must be displayed at each business location. This bill eliminates the option of an individual who acquires unstamped cigarettes for his own personal use to register with the Department of Revenue. Licensees may not hold or store any tobacco products, intended for sale or distribution in Arizona, at a location inside or outside Arizona unless that location has been disclosed to the Department of Revenue. Additionally, tobacco products held or stored for distribution or sale in Arizona, whether inside or outside Arizona, shall be accessible to the Department of Revenue during normal business hours. Among existing reasons for revoking, refusing to renew, or refusing to issue a license, the Department of Revenue may now deny a license if the applicant s civil rights have been suspended under A.R.S If an applicant s civil rights have been suspended, he or she is ineligible to hold a license for five years after his or her rights have been restored. A person may not apply for or hold a distributor s license if he or she does not engage in the activities of A.R.S (A), and the Department of Revenue may cancel or revoke that license if the licensee fails to file a return for 12 consecutive months. A.R.S Limitations on retail sales. Retailers are prohibited from using vehicles as a place of business for selling tobacco products. This bill does not, however, prohibit the lawful delivery of tobacco products by a person with a valid license using a vehicle he owns, operates, or contracts. Retailers may sell any tobacco product not otherwise prohibited for resale by state or federal law. Retailers may not acquire or possess unstamped cigarettes or other tobacco products unless the retailer has a valid license. A.R.S Unstamped cigarettes: exceptions to tax stamp requirements. This bill eliminates the option for registered individuals to file a return and pay all applicable taxes in lieu of purchasing official tax stamps for cigarettes. A.R.S A licensed distributor may submit a written request to sell, distribute, or transfer unstamped cigarettes to another licensed distributor; the Department of 8

9 Revenue will approve or deny such a request within 10 days of receipt. A.R.S (D). Unstamped cigarettes: storage and transportation. Unstamped cigarettes and untaxed tobacco products may only be held, stored, or transported in a vehicle in Arizona if: 1) the vehicle is owned by a person who holds a valid license and who is transporting the products between business locations; and 2) the vehicle is transporting the unstamped or untaxed luxuries to a licensed distributor as part of a lawful sale or in interstate commerce to a manufacturer, distributor, or retailer. A.R.S (D). Tax stamps: payment of taxes. A person may not sell cigarettes in Arizona unless applicable taxes have been paid, as evidence by an Arizona tax stamp. The Department of Revenue will now treat taxes on non-cigarette tobacco products as paid at the time of sale, distribution, or transfer if the distributor reports and remits the taxes as prescribed in A.R.S Such returns now constitute official indicia that tobacco taxes have been paid on those products. A.R.S Effective October 1, 2014, the discount rate on the face value of all cigarette stamps sold is 96% (discounts prior to September 20, 2014 ranged from 96% to 98%). Any rebates or refunds requested on the stamps must equal the face value of the stamp less than four percent of face value. A.R.S Waiver of bonding requirements. For purchases of tax stamps on which the Indian Reservation Tobacco Tax has been paid, a distributor may now ask the Department of Revenue to waive the bonding requirement if the distributor maintains a timely, accurate, and complete filing and payment record for two years and complies with all other requirements of licensed distributors. A.R.S (D). This section is effective retroactively to March 31, Tax refunds for non-cigarette tobacco products and the Indian Reservation Tobacco Tax. Distributors requesting a refund must now establish entitlement to the refund by obtaining a report from the retailer indicating the quantities sold and other necessary facts. The report is subject to the following conditions: 1) it must be provided in the form and manner required by the Department of Revenue; 2) the Department of Revenue may use the report to indicate which transactions require additional information from the distributor; 3) the burden of proof is on the distributor to demonstrate eligibility for the refund or credit, but the Department of Revenue may also require the retailer who prepared the report to establish its accuracy; 4) if the retailer cannot establish accuracy, the retailer is liable for the tax, penalties, and interest that the distributor would have been liable for had the distributor not otherwise complied with this subsection; 5) payment of the liability by the retailer exempts the distributor from liability; and 6) all amounts collected from a retailer shall be treated as tax revenues collected from the distributor. A.R.S (G). Limitations on unused/spoiled tax stamps. The Department of Revenue will now only redeem unused or spoiled tax stamps for two years from the date of the request for redemption. The bill also specifies that the Department of Revenue will not redeem lost or stolen stamps. A.R.S Filing requirements for cigarette and roll-yourown tobacco distributors. The filing deadline is changed to on or before the 20 th day of the month after the month for which the return is being filed. The return must now include the following information, separately stated by brand and nonparticipating manufacturer: 1) the brand name of the products; 2) the name and address of each nonparticipating manufacturer identified on the return; 3) the number of individual cigarettes sold; 4) the amount of luxury taxes paid or due on the cigarettes and roll-your-own tobacco products, separately stating the amounts paid by tax stamps, on roll-yourown tobacco containers, and any other excise taxes paid; 5) the number of individual cigarettes received; 6) the number of individual cigarettes that the distributor exported from Arizona without payment of Arizona luxury taxes; 7) the number of individual cigarettes for which the distributor received a refund under A.R.S ; and 8) the invoice number and a copy of each invoice relating to each of the following transactions: the distributor s purchase of acquisition of any nonparticipating manufacturer s cigarettes received or sold by the distributor in Arizona and the distributor s export, if any, of any nonparticipating manufacturer s cigarettes from Arizona. All filings must also separately state the number of individual cigarettes in each package or container by brand and nonparticipating manufacturer. A.R.S New stamp requirements for cigarettes sold onreservation to enrolled tribal members. Effective January 1, 2015, distributors must affix a tax stamp for on-reservation sales of cigarettes to enrolled 9

10 members of that tribe. This stamp will only apply to sales where the tribe does not impose a tax or exempts its members from tax. If the tribe does levy a tax on its members, the distributor will affix stamps according to the rules in Chapter 5 [A.R.S to -3212]. A.R.S Collection of tribal excise taxes by Department of Revenue: Under this new code section, A.R.S , the Department of Revenue may enter into intergovernmental agreements or contracts with Indian tribes to collect and administer any tribal excise taxes on tobacco products. Any agreement entered into under this section must contain provisions for a uniform or coordinated audit procedure for both the Indian Reservation Tobacco Tax and the tribe s excise taxes. A.R.S Definition of units sold changed to include reservation sales; when reservation sales are deemed to occur. This bill changes the definition of units sold, as used in A.R.S , to eliminate the distinction between cigarettes subject to the full suite of Arizona tobacco taxes and those subject to the Indian Reservation Tobacco Tax; units sold now refers to all sales of cigarettes to a consumer. The bill also deems the sale of cigarettes subject to the Indian Reservation Tobacco Tax or a tribal excise tax to occur at the earlier of either when the tax is collected or pre-collected or when an appropriate tax stamp is affixed to the cigarettes. A.R.S (k). Requirements for nonparticipating manufacturers. In 1998, Arizona entered a settlement agreement with tobacco manufacturers obligating participating manufacturers to fund certain public health initiatives. A nonparticipating manufacturer is a manufacturer of tobacco products that did not participate in the settlement. Certifications for nonparticipating manufacturers are now due only to the attorney general, and not also to the Department of Revenue. Supplemental documentation is no longer allowed to support a certification rejected due to incomplete or incorrect information. Manufacturers must instead submit an entirely new certification to the attorney general. A.R.S (3)(a). A nonparticipating manufacturer must now include a list of all Arizona resident and non-resident distributors to which it sold cigarettes in the prior calendar year in its certification. The bill also specifies that a supplemental certification requesting an addition or modification does not relieve brand families from the prohibitions of the section until the request is approved by the attorney general and the directory of cigarettes approved for stamping and sale is updated. A.R.S (3)(a)(2). Nonparticipating manufacturers that are not also licensed distributors must now certify that all sales or shipments made into Arizona are made to licensed distributors. A.R.S (3)(a)(3)(e). If a manufacturer is not listed in the directory, it must submit an initial certification (which has the same requirements as the annual certification); the unlisted manufacturer will remain subject to the prohibitions of this section until the directory is updated. A.R.S (3)(a)(6). Bond certifications and materials, and the importer declarations, must now be submitted as part of the initial, annual, and supplemental certifications. A.R.S (3)(e). This bill makes it unlawful to sell, offer, or possess for sale in Arizona any cigarettes from a manufacturer or brand family that is not listed in the directory. Finally, manufacturers subject to the requirements of A.R.S (3)(a)(2) must now make their required escrow deposits following each sales quarter. A.R.S (5)(g). Records requirements. Requirements are now imposed on all tobacco products, not just cigarettes. All retailers of tobacco products are required to keep invoices or similar documentation issued by the distributor when the retailer purchases the products. A.R.S (A)-(C). Definitions. Luxury, sales, transaction privilege, or similar tax means an excise tax levied exclusively on tobacco products. Certain other definitions are modified slightly, including brand family, cigarette, cigarette manufacturer, master settlement agreement, nonparticipating manufacturer, participating manufacturer, place of business, tobacco product manufacturer, and vehicle. A.R.S Authorized disclosure of confidential information. The Department of Revenue may now disclose to the attorney general confidential information for the purposes of determining compliance with any health control law relating to tobacco sales, and law relating to cigarette ignition propensity standards. This bill removes the prior limitation on disclosure of confidential information relating to the master settlement agreement, which limited disclosure to luxury tax information relating to manufacturers, distributors, wholesalers, and retailers. A.R.S (T). The Department of Revenue may also 10

11 share such information with federal, state, and local law enforcement agencies for the purposes of enforcement in other states, and may now also share the information with a court, an arbitrator, a data clearinghouse, or a similar entity, for the purpose of assessing compliance with or making the calculations required by the master settlement agreement (including agreements regarding disputes under the master settlement agreement), and with counsel for the parties and any expert witnesses for the proceeding, as long as the information remains confidential. A.R.S (V). This section is effective January 1, Inspection of records. All records inspections, including of records stored electronically, conducted by the Department of Revenue must occur during normal business hours unless the inspector has a judicial warrant or prior written consent of the wholesaler, distributor, or retailer. The bill also requires that a business cannot keep its books and other records in a location that would require a warrant to prior written consent for access and inspection. If the business stores its books and other records electronically, access will be given at the place of business during normal business hours. A.R.S Senate Bill 1397, Chapter 253. Changes to licensing and procedures involving alcoholic beverages for craft distillers, farm wineries, and microbreweries. While this bill makes a number of changes to the procedures and licensing surrounding all sales of alcoholic beverages, the most significant changes involve craft distilleries, farm wineries, and microbreweries. New definitions for craft distillers, farm wineries, and microbreweries. A craft distiller is a producer or manufacturer of no more than 20,000 gallons of distilled spirits per calendar year. A farm winery is a producer or manufacturer of between 200 and 40,000 gallons of wine per calendar year. A microbrewery is a producer or manufacturer of beer onsite for offsite consumption; beer produced shall not be less than 5,000 gallons and nor more than 1,240,000 gallons per calendar year. The definitions for domestic farm winery and domestic microbrewery are eliminated. A.R.S Licensing. If an application for a license is filed for a location that, on the date of filing, has a valid license of the same series, there is a rebuttable presumption that the public convenience and best interest of the community at that location was established at the time the location was previously licensed. This bill extends this rebuttable presumption to include applications for transferrable licenses as well as nontransferable licenses. The presumption will not apply to the new craft distiller licenses, microbrewery licenses, or farm winery licenses. A.R.S (A). The requirements that must be satisfied before the director will issue a temporary special event license are expanded to require approval by the County Board of Supervisors or the governing body of the city or town, unless the physical location of the proposed event is fully within the licensed premises. The bill limits the issuance of temporary special event licenses to unlicensed locations to no more than 12 per year. Applications must be submitted at least 10 days before the planned event. A.R.S (B)-(D). The director is now allowed to issue a special event license in conjunction with a wine festival license and a craft distillery festival license. Both of these licenses will permit the presence of purchased alcoholic beverages in the possession of the purchaser. A.R.S (F). This bill doubles the number of wine festival licenses that may be issued in a given year from 25 to 50 and doubles the number of days which a winery may participate from 75 to 150 per year. A.R.S The bill eliminates the January 1, 2015 sunset date on the director s ability to charge a fee for site inspections conducted before the issuance of a restaurant license. A.R.S (G). The bill allows the director to reissue any license for a bar, beer, wine, or liquor store that was revoked or reverted by a county after July 1, 2014 and it eliminates the January 1, 2015 sunset date on allowing the director to charge a fee to process an application for sampling privileges. A.R.S (B), (J). Under this bill, the director may revoke or suspend a license for a serious act of violence on the licensed premises or the failure to report a serious act of violence, in addition to the previously permitted reasons for revocation or suspension. A.R.S (A)(14)- (15). Farm winery licenses. This bill changes reporting requirements surrounding the amount of wine produced from the end of the fiscal year to calendar year end. License holders must surrender their farm winery license before a producer s license will be issued if the license holder exceeds the amount permissibly produced per year under the license. Farm winery licenses will be limited to wineries with a permit from the US federal government or with a contract for a custom crush arrangement as 11