PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-09-082.
Title of Rule: WAC 458-20-192 Indians -- Indian reservations -- Trust lands.
Purpose: To describe the tax-reporting and tax-collecting responsibilities of Indians and Indian tribes doing business on and off of Indian land and nonmembers doing business on Indian land.
Statutory Authority for Adoption: RCW 82.32.300.
Statute Being Implemented: Rule 192 reflects the application of the Revenue Act to Indians and nonmembers doing business with Indians in accordance with federal law, federal court decisions, and the United States Constitution.
Summary: This rule explains the tax-collecting and tax-reporting responsibilities of Indian tribes, enrolled members of Indian tribes, and nonmembers doing business on Indian land with Indians and/or nonenrolled persons. The rule is being revised to reflect federal court decisions that have occurred since the rule was last revised.
Reasons Supporting Proposal: The information provided in the current rule is out of date. The rule needs to be revised to reflect current federal court decisions, and to provide additional guidance regarding business activities engaged in by Indians and by nonmembers doing business with Indians.
Name of Agency Personnel Responsible for Drafting: Leslie Cushman, 1025 Capital Plaza, Suite #400, Olympia, WA, (360) 570-6122; Implementation: Claire Hesselholt, 1025 Capital Plaza, Suite #400, Olympia, WA, (360) 570-6124; and Enforcement: Gary O'Neil, 2735 Harrison N.W., Building 4, Olympia, WA, (360) 753-2871.
Name of Proponent: Department of Revenue, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: This rule explains the tax-collecting and tax-reporting responsibilities of Indian tribes, enrolled members of Indian tribes, and nonmembers doing business on Indian land with Indians and/or nonenrolled persons. It also explains the tax-collecting and tax-reporting responsibilities of nonmembers doing business with Indians and Indian tribes both on and off Indian land.
The rule is being revised to reflect federal court decisions that have occurred since the rule was last revised. The proposed rule clarifies the tax responsibilities of Indian tribes and members of Indian tribes doing business outside Indian land. It addresses the business activities for which federal law has preempted state taxation (e.g., treaty fisheries). It clarifies the application of the cigarette tax imposed by chapter 82.24 RCW (administered by the Department of Revenue and enforced by the Liquor Control Board), and the taxability of motor vehicles or trailers used in part on Indian land by an Indian or Indian tribe. The proposed rule also provides a sample declaration statement that may be used to substantiate the exempt nature of a sale when property is delivered to an Indian or Indian tribe on Indian land. It explains the documentation requirements that must be satisfied to substantiate a claim of a tax-exempt sale. The purpose of this revision is to provide a current explanation of the state of tax law with respect to the business activities if Indians, Indian tribes, and non-Indians doing business with Indians and Indian tribes.
Proposal Changes the Following Existing Rules: This is a revision to current WAC 458-20-192. See explanations above for a description of the proposed changes.
No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required because the rule and the proposed amendments do not impose any requirements or burden upon small businesses that are not already specifically required by statute.
RCW 34.05.328 does not apply to this rule adoption. The proposed rule is an interpretive rule as defined in RCW 34.05.328.
Hearing Location: Capital Plaza Building, 4th Floor, Large Conference Room, 1025 Union Avenue, Olympia, WA, on September 6, 2000, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Ginny Dale no later than ten days before the hearing date, TDD 1-800-451-7985, or (360) 570-6176.
Submit Written Comments to: Leslie Cushman, Department of Revenue, P.O. Box 47467, Olympia, WA 98504-7467, fax (360) 664-0693, e-mail lesliec@dor.wa.gov, by September 6, 2000.
Date of Intended Adoption: September 20, 2000.
July 21, 2000
Claire Hesselholt
Rules Manager
Legislation and Policy Division
OTS-4149.2
AMENDATORY SECTION(Amending Order ET 80-3, filed 11/14/80)
WAC 458-20-192
Indians -- Indian reservations -- Trust lands.
The following Washington reservations are the only "Indian reservations" currently recognized as such by the United States Department of Interior: Chehalis, Colville, Hoh, Kalispell, Lower Elwha, Lummi, Makah, Muckleshoot, Nisqually, Nooksack, Ozette, Port Gamble, Port Madison, Puyallup, Quileute, Quinault, Shoalwater, Skokomish, Spokane, Squaxin Island, Swinomish, Tulalip, and Yakima.
The term "Indian tribe," as used herein, means any organized Indian nation, tribe, band, or community recognized as an "Indian tribe" by the United States Department of the Interior.
The term "Indian," as used herein, means a person duly registered on the tribal rolls of the Indian tribe occupying an Indian reservation.
No deduction is allowed to others by reason of business conducted with Indians or Indian tribes within an Indian reservation.
Sales of tangible personal property to Indians or Indian tribes by off-reservation persons are subject to the retail sales tax except where the seller makes actual delivery of the property sold to a point within an Indian reservation.
Sales of taxable services to Indians or Indian tribes are subject to the retail sales tax except where the services are rendered within an Indian reservation.
Sales to persons other than Indians are subject to the retail sales tax irrespective of where delivery or rendition of services takes place. Thus, Indian and Indian tribal retailers are required to collect and remit to the state the retail sales tax upon each taxable sale made by them within an Indian reservation to persons other than Indians.
In order to substantiate the tax-exempt status of a retail sale made within an Indian reservation to an Indian purchaser, unless the purchaser is personally known to the retailer as an enrolled Indian, the retailer shall require presentation of a tribal membership card identifying the purchaser as duly registered on the tribal rolls of an Indian tribe under such lawful criteria as the tribal organization has established. A record shall be retained by the retailer of all tax-exempt sales to support the sales tax deduction on returns filed with the department, identifying the dollar amount of the sale and indicating the name of the purchaser, tribal affiliation of the purchaser, the Indian reservation to which or within which delivery or rendition of services was made, and the date of sale.
Special application of retail sales tax and use tax with respect to sales of motor vehicles or trailers to Indians and Indian tribes. When motor vehicles or trailers sold to Indians or Indian tribes are licensed by the state of Washington at the time of sale, or at any time thereafter, a presumption is raised that such motor vehicles or trailers are for use on the highways of the state of Washington outside the reservation. When motor vehicles or trailers are licensed prior to delivery, dealers are required to collect the retail sales tax in every instance when valid plates remain on the vehicle or trailer, regardless of delivery point. County auditors must collect the use tax when Indians or Indian tribes apply for a license or transfer of registration unless the applicant can show that retail sales tax or use tax has previously been paid on the sale or use of the vehicle or trailer by the applicant.
Delivery or sale and delivery by any person of unstamped cigarettes to Indians or tribal vendors for sale to qualified purchasers may be made only in such quantity as is approved in advance by the department of revenue. Approval for delivery will be based upon evidence of a valid purchase order of a quantity reasonably related to the probable demand of qualified purchasers in the trade territory of the vendor. Evidence submitted may also consist of verified record of previous sales to qualified purchasers, the probable demand as indicated by average cigarette consumption for the number of qualified purchasers within a reasonable distance of the vendor's place of business, records indicating the percentage of such trade that has historically been realized by the vendor, or such other statistical evidence submitted in support of the proposed transaction. In the absence of such evidence the department may restrict total deliveries of unstamped cigarettes to any reservation or to any Indian or tribal vendor thereon to a quantity reasonably equal to the national average cigarette consumption per capita, as compiled for the most recently completed calendar or fiscal year by the Tobacco Tax Institute, multiplied by the resident enrolled membership of the affected tribe. Any delivery, or attempted delivery, of unstamped cigarettes to an Indian or tribal vendor without advance approval by the department will result in the treatment of those cigarettes as contraband and subject to seizure and in addition the person making or attempting such delivery will be held liable for payment of the cigarette tax and penalties. Approval for sale or delivery to Indian or tribal vendors of unstamped cigarettes will be denied where the department finds that such Indian or tribal vendors are or have been making sales in violation of this rule.
Delivery of unstamped cigarettes by a licensed distributor to Indians or Indian tribes must be by bonded carrier or the distributor's own vehicle to the Indian reservation. Delivery of unstamped cigarettes at the distributor's dock or place of business or any other off-reservation location is prohibited.
Revised November 14, 1980.))
(1) Introduction. This rule describes the tax reporting and tax collecting responsibilities of Indians doing business on and off of Indian land and nonmembers doing business on Indian land with Indians and Indian tribes. This rule only addresses those taxes administered by the department of revenue (department).
(2) Definitions. The following definitions apply throughout this rule:
(a) "Indian" means a person on the tribal rolls of the Indian tribe on whose land the activity takes place. A person on the tribal rolls is also known as an "enrolled member" or a "member" or an "enrolled person" or an "enrollee" or a "tribal member."
(b) "Indian tribe" means an Indian nation, tribe, band, community, or other entity recognized as an "Indian tribe" by the United States Department of the Interior. The phrase "federally recognized Indian tribe" and the term "tribe" have the same meaning as "Indian tribe."
(c) "Indian land" means land within the boundaries of a reservation, trust land, and restricted land.
(i) "Indian reservation" means all lands, notwithstanding the issuance of any patent, within the exterior boundaries of areas set aside by the United States for the use and occupancy of Indian tribes by treaty, law, or executive order and that are areas currently recognized as "Indian reservations" by the United States Department of the Interior.
(ii) "Trust land" means land held in trust by the United States for an individual Indian or an Indian tribe.
(iii) "Restricted land" means land subject to a restriction against alienation imposed by the United States.
(d) "Nonmember" means a person not on the tribal rolls of the Indian tribe.
(3) Indian reservations. As of the effective date of this rule there are twenty-eight federally recognized Indian tribes in the state of Washington. You may contact the governor's office of Indian affairs for an up-to-date list of federally recognized Indian tribes in the state of Washington at their website, www.goia.wa.gov or at:
Governor's Office of Indian Affairs
531 15th Ave. S.E.
P.O. Box 40909
Olympia, WA 98504-0909
360-753-2411
(4) Recordkeeping.
(a) Generally. Taxpayers are required to maintain appropriate records on the tax exempt status of transactions. For example, in the case of the refuse collection tax, the refuse collection company must substantiate the tax-exempt status of its customers. This can be done one of two ways. The tribe can provide the refuse collection company with a list of all of the tribal members living on Indian land or the individual members can provide exemption certificates to the company. A buyer's retail sales tax exemption certificate that can be used for this purpose is located on the department's website (www.dor.wa.gov/forms/other.htm) or may be obtained by contacting the department. The company must then keep the list or the certificates in its files as proof of the tax exempt status of the tribe and its members. Individual businesses may contact the department to determine how best to keep records for specific situations.
Persons engaging in any business activity subject to a tax administered by the department are required to keep and preserve, for a period of five years, suitable records as may be necessary to determine the amount of tax that may be due.
(b) Retail sales. In the case of a retail sale that is not subject to tax, the seller must retain appropriate records to support the sales tax deduction on returns filed with the department. The records must identify the dollar amount of the sale and indicate the name and tribal affiliation of the purchaser, place to which delivery or rendition of services was made, and the date of sale.
(5) Enrolled Indians on Indian land. The state may not tax Indians or Indian tribes conducting business on Indian land. This exclusion from tax does not extend to persons who are not enrolled with the tribe upon whose land the activity takes place or to other tribes.
This includes all taxes (e.g., B&O tax, public utility tax, retail sales tax, use tax, cigarette tax). If the incidence of the tax falls on an Indian or a tribe, the state has no authority to impose the tax if the activity takes place on Indian land or the activity is directly associated with treaty fishery activity as described in this rule. "Incidence" means upon whom the tax is imposed. For example, the incidence of the retail sales tax is on the buyer.
For the purposes of the retail sales tax and other taxes imposed on the buyer, tax is not imposed if the tangible personal property is delivered to the member or tribe on Indian land or if the service (e.g., construction services) is performed for the member or tribe on Indian land.
If a contract for retail services, such as constructing, is for work both on and off of Indian land, only the portion of the contract that relates to work done on Indian land is excluded from tax. The work done for a tribe or Indian off of Indian land, for example sewer line work that extends off of Indian land, is subject to retail sales tax. In addition, the contractor is subject to the state business and occupation tax on the gross income from this portion of the contract. Conversely, based on the federal preemption analysis for Indian traders, the contractor is not subject to state B&O tax on the income on the portion of the work on Indian land.
Subsequent use by an Indian off of Indian land of property delivered to or acquired on Indian land will not subject the Indian to use tax.
(a) Registration requirements. Generally, enrolled members who are doing business solely on Indian land are not required to register with the department. See "tax collection" below for retailer registration obligations. Nonmember-owned businesses doing business on Indian land must register with the department if required to do so under RCW 82.32.030 (see also WAC 458-20-101 for more information regarding registration requirements).
(b) Tax collection. Generally, sales to persons other than Indians are subject to the retail sales tax irrespective of where in this state delivery or rendition of services takes place. All sellers, both Indians and nonmembers, are required to register with the department, and collect and remit to the state the retail sales tax upon each taxable sale made by them to nonmembers on Indian land. Some sales by Indians to nonmembers are not subject to tax. See the discussion below regarding preemption of tax.
In order to substantiate the tax-exempt status of a retail sale made on Indian land to a person who is a tribal member, unless the purchaser is personally known to the seller as a member, the seller must require presentation of a tribal membership card or other suitable identification of the purchaser as an enrollee of the Indian tribe.
A tribe and the department may enter into an agreement covering identification of enrolled members, in which case the terms of the agreement govern.
(c) Corporations or other entities owned by Indians. A state chartered corporation comprised solely of Indians is not subject to tax on business conducted on Indian land if all of the members of the corporation are enrolled members of the tribe upon whose reservation or trust land the business is conducted. The corporation is subject to tax on business conducted off of Indian land, subject to the exception for treaty fishery activity as explained later in this rule. Similarly, partnerships or other entities owned solely by enrolled members of a tribe are not subject to tax on business conducted on Indian land.
(6) Indians off Indian land. Except for treaty fishery activity, the income of the business of Indians or Indian tribes attributable to tangible personal property delivered off of Indian land, services performed off of Indian land, and other taxable activity performed off of Indian land, are subject to tax (e.g., the B&O, the public utility tax, retail sales tax) unless a specific exemption applies (e.g., retail sales tax exemption for food products as described in WAC 458-20-244).
(a) Registration requirements. Indians or Indian tribes who deliver tangible personal property, provide services, or otherwise engage in business off of Indian land, even if business is also conducted on Indian land, must register with the department as required by RCW 82.32.030. (See also WAC 458-20-101 for more registration information.)
(b) Treaty fishery - Preemption. For the purpose of this rule, "treaty fishery" means the fishing and shellfish rights preserved in a tribe's treaty, a federal executive order, or an act of Congress, declaring the right to fish in usual and accustomed fishing grounds both on and off of Indian land. It includes activities such as harvesting, processing, transporting, or selling.
(i) The income of a business attributable to commerce associated with the treaty fishery is not subject to tax. This exclusion from tax is limited to those businesses owned and managed by Indians who have treaty fishing rights. "Commerce associated with the treaty fishery" includes harvesting, processing, transporting, and selling of fish or shellfish caught in the treaty fishery. If a business owned and managed by Indians or an Indian tribe or tribes deals with both treaty and nontreaty fish, this exclusion from tax is limited to the business attributable to the treaty fish.
Treaty fish and shellfish sold by members of the tribe are not subject to sales tax or use tax, regardless of where the sale takes place.
(ii) The retail sales tax and use tax do not apply to the services or tangible personal property for use in the treaty fishery, regardless of where delivery of the item or performance of the service occurs. Gear, such as boats, motors, nets, and clothing, purchased or used by Indians in the treaty fishery is not subject to sales or use tax. Likewise, retail services in respect to property used in the treaty fishery, such as boat or engine repair, are not subject to sales tax.
(iii) A tribe and the department may enter into an agreement covering the treaty fishery and taxable activities of enrolled members, in which case the terms of the agreement govern.
(7) Nonmembers on Indian land. Generally a nonenrolled person doing business on Indian land is subject to tax. Unless specifically described as preempted by this rule, the department will review transactions on a case-by-case basis to determine whether tax applies. A nonmember who is not taxable on the basis of preemption should refer to WAC 458-20-101 (tax registration) to determine whether the person must register with the department.
(a) Gaming - Preemption of tax. Gaming by Indian tribes is regulated by the federal Indian Gaming Regulatory Act. Indian-owned gaming operations on Indian land are not subject to tax. Nonmembers who operate or manage gaming operations for Indian tribes are not subject to tax for business conducted on Indian land. This exclusion from tax applies to taxes imposed on income attributable to the business activity (e.g., the B&O tax), and to sales and use tax on the property used on the reservation to conduct the activity. Sales tax will apply if delivery of property is taken off reservation.
Nonmembers who purchase tangible personal property at a gaming facility are subject to retail sales or use tax, unless (i) the item is preempted based on value generated on the reservation, such as food at restaurants or lounges owned and operated by the tribe or a tribal member or sales of member arts and crafts at gift shops or (ii) the item is purchased for use in the gaming activity at the facility, such as bingo cards or daubers.
(b) Indian trader - Preemption of tax. For the purposes of this rule, "Indian trader" means a person performing a service on Indian land for the tribe or for tribal members or making sales of tangible personal property on Indian land to the tribe or to tribal members. An Indian trader is not subject to tax on the income attributable to the business activity. Examples of activities under the Indian trader status are cable service, internet service, repair services, accounting services, legal services, and any other transaction in which the nonenrolled person sells tangible personal property or performs a service.
A contractor who meets the requirements for "Indian trader" does not become subject to use tax on materials as this is not a "government contractor" situation. (See WAC 458-20-17001 for more information on government contractors.)
(i) Tangible personal property. A person is "making sales of tangible personal property on Indian land" if the tangible personal property is delivered to the buyer on Indian land and if:
(A) The property is located on Indian land at the time of sale; or
(B) If the seller has a branch office, outlet, or place of business on the Indian land and that location is used to receive the order or distribute the property; or
(C) If the order for sale of the property is solicited by the seller on Indian land.
(ii) Services. A person is "performing a service on Indian land" if the services are performed on the reservation. If the work is done both on and off of Indian land the seller must distinguish where the work is done. This is not an apportionment situation therefore it is not necessary to keep track of costs. However, simple recordkeeping of place of work and time spent doing the work must be maintained so that the department can determine the tax status of the work. If a contract for retail services, such as constructing, is for work both on and off of Indian land, only the portion of the contract that relates to work done on the Indian land is excluded from tax. Income attributable to work done for a tribe or Indian person off of Indian land, for example sewer line work that extends off of the Indian land, is subject to tax.
(c) Value generated on the reservation - Preemption of tax - Balancing test.
(i) For the purposes of this rule, "value generated on the reservation" means tangible personal property grown, harvested, extracted, produced, or manufactured on Indian land by businesses owned and operated by Indians or by the tribe; or services (retail and otherwise) provided on Indian land by businesses owned and operated by Indians or the tribe.
(ii) There is no retail sales tax on purchases taking place on Indian land of products or services that are "value generated on the reservation" if the tribal and federal interests outweigh the state interests. This is known as the balancing test. For example, lumber manufactured on Indian land at a sawmill owned and operated by the tribe is considered "value generated on the reservation" where tribal members are the main source of employment and where the state has no or limited regulatory jurisdiction in regard to the activity. Likewise, if the outcome of the balancing test is in favor of the tribal and federal interests, use tax is not due from a person who, on Indian land, acquires property that represents "value generated on the reservation," regardless of whether the item is subsequently taken off of Indian land.
(iii) The Indian seller of a product that is "value generated on the reservation" must provide the buyer with a receipt with a notation indicating the property is "value generated on the reservation." For example, the acronym "VGR" may simply be written on the invoice. In addition, the Indian seller must retain records adequate to allow confirmation of the status of the transaction. A tribe and the department may enter into an agreement covering recordkeeping by enrolled members, in which case the terms of the agreement govern.
(iv) The balancing test is applied on a case-by-case basis. For a ruling on a specific issue please contact the department at:
Department of Revenue
Executive
P.O. Box 47454
Olympia, WA 98504-7454
(d) Federal contractors. The preemption analysis does not extend to persons who are doing work for the federal government on Indian land. For example, a nonmember doing road construction for the Bureau of Indian Affairs within an Indian reservation is subject to state tax jurisdiction.
(e) Indian housing authorities. RCW 35.82.210 provides that the property of housing authorities and the housing authorities themselves are exempt from taxes, such as state and local sales and use taxes, state and local excise taxes, state and local property taxes, and special assessments. This covers tribal housing authorities and intertribal housing authorities both on and off of Indian land.
Not all assessments are exempted under RCW 35.82.210. See Housing Authority of Sunnyside v. Sunnyside Valley Irrigation District, 112 Wn2d 262 (1989).
For the purposes of the exemption:
(i) "Intertribal housing authority" means a housing authority created by a consortium of tribal governments to operate and administer housing programs for persons of low income or senior citizens for and on behalf of such tribes.
(ii) "Tribal government" means the governing body of a federally recognized Indian tribe.
(iii) "Tribal housing authority" means the tribal government or an agency or branch of the tribal government that operates and administers housing programs for persons of low income or senior citizens.
(8) Motor vehicles or trailers sold to Indians or Indian tribes. Sales tax is not imposed when a motor vehicle or trailer is delivered to an Indian or the tribe on Indian land. Use tax is not imposed when a motor vehicle or trailer is acquired on Indian land by an Indian or the tribe for at least partial use on Indian land. For the purposes of this rule, acquisition on Indian land satisfies the "partial use" threshold.
(a) Registration of vehicle or trailer. Indians or tribes are subject to the use tax at the time they apply for a license or transfer of registration, unless they can document that they previously paid retail sales or use tax on their acquisition or use of the vehicle or trailer, or unless they can document that the vehicle or trailer was acquired on or delivered to Indian land.
(b) Declaration. The person claiming the exclusion from tax must sign a declaration of delivery to or acquisition on Indian land. A statement in substantially the following form will be sufficient to establish eligibility for the exclusion from sales and use tax.
(9) Miscellaneous taxes. The state imposes a number of excise taxes in addition to the most common excise taxes administered by the department (e.g., B&O, public utility, retail sales, and use taxes). The rules of construction discussed above apply when determining whether these taxes are due from Indians, tribes, or nonmembers doing business on Indian land. The following is a brief discussion of some of these taxes.
(a) Cigarette tax. The statutory duties applicable to administration and enforcement of the cigarette tax are divided between the department and the liquor control board. Enforcement of nonvoluntary compliance is the responsibility of the liquor control board. Voluntary compliance is the responsibility of the department of revenue. See chapter 82.24 RCW for specific statutory requirements regarding purchase of cigarettes by Indians and Indian tribes.
Where sales of cigarettes are the subject of a government to government cooperative agreement, the provisions of that agreement supersede conflicting provisions of this subsection.
(i) Sales of cigarettes to nonmembers by Indians or Indian tribes are subject to the cigarette tax. The seller is obligated to make precollection of the tax. Therefore, Indian or tribal sellers making, or intending to make, sales to non-Indian customers must purchase a stock of cigarettes with Washington state cigarette tax stamps affixed for the purpose of making such sales. However, Indians and Indian tribes may make purchases of untaxed stamped cigarettes from licensed cigarette distributors for resale to qualified purchasers.
For purposes of this rule, "qualified purchaser" means an Indian purchasing for resale within the reservation to other Indians or an Indian purchasing solely for his or her use other than for resale.
(ii) Delivery or sale and delivery by any person of unstamped cigarettes to Indians or tribal sellers for sale to qualified purchasers may be made only in such quantity as is approved in advance by the department. Approval for delivery will be based upon evidence of a valid purchase order of a quantity reasonably related to the probable demand of qualified purchasers in the trade territory of the seller. Evidence submitted may also consist of verified record of previous sales to qualified purchasers, the probable demand as indicated by average cigarette consumption for the number of qualified purchasers within a reasonable distance of the seller's place of business, records indicating the percentage of such trade that has historically been realized by the seller, or such other statistical evidence submitted in support of the proposed transaction. In the absence of such evidence the department may restrict total deliveries of unstamped cigarettes to any reservation or to any Indian or tribal seller thereon to a quantity reasonably equal to the national average cigarette consumption per capita, as compiled for the most recently completed calendar or fiscal year, multiplied by the resident enrolled membership of the affected tribe.
(iii) Any delivery, or attempted delivery, of unstamped cigarettes to an Indian or tribal seller without advance approval by the department will result in the treatment of those cigarettes as contraband and subject to seizure. In addition, the person making or attempting such delivery will be held liable for payment of the cigarette tax and penalties. See chapter 82.24 RCW.
Approval for sale or delivery to Indian or tribal sellers of unstamped cigarettes will be denied where the department finds that such Indian or tribal sellers are or have been making sales in violation of this rule.
(iv) Delivery of unstamped cigarettes by a licensed distributor to Indians or Indian tribes must be by bonded carrier or the distributor's own vehicle to the Indian reservation. Delivery of unstamped untaxed stamped cigarettes off of Indian land at the distributor's dock or place of business or any other off-reservation location is prohibited.
(b) Refuse collection tax. Indians and Indian tribes are not subject to the refuse collection tax for service provided on the reservation, regardless of whether the refuse collection company hauls the refuse off the reservation.
(c) Leasehold excise tax. Indians and Indian tribes on Indian land are not subject to the leasehold excise tax. Leasehold interests held by nonenrolled persons and in regard to Indian lands are subject to tax.
(d) Fish tax. Chapter 82.27 RCW imposes a tax on enhanced food fish, which includes shellfish. The measure of the fish tax is the value of the enhanced food fish at the point of landing. A credit is allowed against the amount of tax owed for amounts paid to legally established taxing authority, which includes Indian tribes, upon food fish purchased in the state or from an Indian tribe. Treaty fish are not subject to the fish tax, either on or off of the reservation.
(e) Tobacco tax. The tobacco tax is imposed under chapter 82.26 RCW. The tax is imposed on distributors as that term is defined in RCW 82.26.010. Tobacco tax is not imposed on Indian persons or tribes who meet the definition of distributor under chapter 82.26 RCW and who take delivery of the tobacco on Indian land.
(f) Real estate excise tax. The real estate excise tax is imposed on the seller. Sale of real estate located within the reservation by a tribe or a tribal member is not subject to real estate excise tax. Sale of land within the reservation by a nonmember to the tribe or to a tribal member is subject to tax.
(g) Timber excise tax. Payment of the timber excise tax is the obligation of the harvester. Generally, timber excise tax is due from a nonmember who harvests timber on fee land within the reservation. Timber excise tax is not due if:
(i) The timber is on Indian land and the harvester is an Indian or Indian tribe; or
(ii) The timber being harvested is on trust land, regardless of the identity of the harvester.
[Statutory Authority: RCW 82.32.300. 80-17-026 (Order ET 80-3), § 458-20-192, filed 11/14/80; Order ET 76-4, § 458-20-192, filed 11/12/76; Order ET 74-5, § 458-20-192, filed 12/16/74; Order ET 70-3, § 458-20-192 (Rule 192), filed 5/29/70, effective 7/1/70.]