Selling at retail
Sec. 1. (a) A person is a retail merchant making a retail
transaction when he engages in selling at retail.
(b) A person is engaged in selling at retail when, in the ordinary
course of his regularly conducted trade or business, he:
(1) acquires tangible personal property for the purpose of
resale; and
(2) transfers that property to another person for consideration.
(c) For purposes of determining what constitutes selling at retail,
it does not matter whether:
(1) the property is transferred in the same form as when it was
acquired;
(2) the property is transferred alone or in conjunction with other
property or services; or
(3) the property is transferred conditionally or otherwise.
(d) Notwithstanding subsection (b), a person is not selling at retail
if he is making a wholesale sale as described in section 2 of this
chapter.
(e) The gross retail income received from selling at retail is only
taxable under this article to the extent that the income represents:
(1) the price of the property transferred, without the rendition
of any service; and
(2) except as provided in subsection (g), any bona fide charges
which are made for preparation, fabrication, alteration,
modification, finishing, completion, delivery, or other service
performed in respect to the property transferred before its
transfer and which are separately stated on the transferor's
records.
For purposes of this subsection, a transfer is considered to have
occurred after delivery of the property to the purchaser.
(f) Notwithstanding subsection (e):
(1) in the case of retail sales of gasoline (as defined in
IC 6-6-1.1-103) and special fuel (as defined in IC 6-6-2.5-22),
the gross retail income received from selling at retail is the total
sales price of the gasoline or special fuel minus the part of that
price attributable to tax imposed under IC 6-6-1.1, IC 6-6-2.5,
or Section 4041(a) or Section 4081 of the Internal Revenue
Code; and
(2) in the case of retail sales of cigarettes (as defined in
IC 6-7-1-2), the gross retail income received from selling at
retail is the total sales price of the cigarettes including the tax
imposed under IC 6-7-1.
(g) Gross retail income does not include income that represents
charges for serving or delivering food and food ingredients
furnished, prepared, or served for consumption at a location, or on
equipment, provided by the retail merchant. However, the exclusion
under this subsection only applies if the charges for the serving or
delivery are stated separately from the price of the food and food
ingredients when the purchaser pays the charges.
As added by Acts 1980, P.L.52, SEC.1. Amended by P.L.2-1987,
SEC.14; P.L.6-1987, SEC.5; P.L.277-1993(ss), SEC.40;
P.L.257-2003, SEC.19; P.L.81-2004, SEC.5.
Last modified: May 28, 2006