Bill Summary – FastDemocracy

0349.02000
     Sixty-sixth
     Legislative Assembly                   SENATE BILL NO. 2257
     of North Dakota
     Introduced by
       Senators Cook, Heckaman, Wardner
       Representatives Boschee, Headland, Pollert
  A BILL for an Act to create and enact chapter 57-39.10 of the North Dakota Century Code,
  relating to state-tribal agreements for the administration and collection of the alcoholic beverage
  wholesale tax, tobacco products wholesale tax, and alcoholic beverages gross receipts tax
  within the exterior boundaries of the Fort Berthold Reservation, Lake Traverse Reservation,
  Spirit Lake Reservation, Standing Rock Reservation, or Turtle Mountain Reservation; to repeal
  chapter 57-39.8 of the North Dakota Century Code, relating to a state-tribal agreement with the
  Standing Rock Sioux Tribe; to provide a continuing appropriation; to provide for application; and
  to declare an emergency.
  BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
     SECTION 1. Chapter 57-39.10 of the North Dakota Century Code is created and enacted
 as follows:
     57-39.10-01. Authority to enter state-tribal alcoholic beverages wholesale tax,
 tobacco products wholesale tax, and alcoholic beverages gross receipts tax agreements.
     1.   The governor, in consultation with the tax commissioner, may enter separate
          agreements on behalf of the state with the governing body of the Three Affiliated
          Tribes of the Fort Berthold Reservation, Sisseton-Wahpeton Oyate of the Lake
          Traverse Reservation, Standing Rock Sioux Tribe, Spirit Lake Tribe, and Turtle
          Mountain Band of Chippewa Indians. Each agreement must comply with this chapter
          relating to the collection, administration, enforcement, and allocation of the state
          alcoholic beverages wholesale taxes under chapters 5-01, 5-02, and 5-03 for sales of
          alcoholic beverages, including beer, wine, sparkling wine, and distilled spirits, for
          delivery to licensed retailers or sale directly to consumers located within the exterior
          boundaries of the Fort Berthold Reservation, that portion of the Lake Traverse
          Reservation located in this state, the Spirit Lake Reservation, that portion of the
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           Standing Rock Reservation located in this state, or the Turtle Mountain Reservation.
           The tax commissioner shall conduct a review of any proposed agreement under this
           chapter to determine if its provisions can be administered and enforced.
      2.   The governor, in consultation with the tax commissioner, may enter separate
           agreements on behalf of the state with the governing body of the Three Affiliated
           Tribes of the Fort Berthold Reservation, Sisseton-Wahpeton Oyate of the Lake
           Traverse Reservation, Standing Rock Sioux Tribe, Spirit Lake Tribe, and Turtle
           Mountain Band of Chippewa Indians. Each agreement must comply with this chapter
           relating to the collection, administration, enforcement, and allocation of the state
          tobacco products wholesale taxes under chapter 57-36 for tobacco products sold by
          licensed wholesalers for delivery to licensed retailers or sold by licensed retailers
          directly to consumers within the exterior boundaries of the Fort Berthold Reservation,
          that portion of the Lake Traverse Reservation located in this state, the Spirit Lake
          Reservation, that portion of the Standing Rock Reservation located in this state, or the
          Turtle Mountain Reservation. The tax commissioner shall conduct a review of any
          proposed agreement under this chapter to determine if its provisions can be
          administered and enforced.
     3.   The governor, in consultation with the tax commissioner, may enter separate
          agreements on behalf of the state with the governing body of the Three Affiliated
          Tribes of the Fort Berthold Reservation, Sisseton-Wahpeton Oyate of the Lake
          Traverse Reservation, Standing Rock Sioux Tribe, Spirit Lake Tribe, and Turtle
          Mountain Band of Chippewa Indians. Each agreement must comply with this chapter
          relating to the collection, administration, enforcement, and allocation of the state
          alcoholic beverages gross receipts tax under chapter 57-39.6, imposed and collected
          within the exterior boundaries of the Fort Berthold Reservation, that portion of the Lake
          Traverse Reservation located in this state, the Spirit Lake Reservation, that portion of
          the Standing Rock Reservation located in this state, or the Turtle Mountain
          Reservation. The tax commissioner shall conduct a review of any proposed agreement
          under this chapter to determine if its provisions can be administered and enforced.
     4.   An agreement under this chapter must include the alcoholic beverages wholesale tax,
          tobacco products wholesale tax, and the alcoholic beverages gross receipts tax.
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     57-39.10-02. Requirements for all state-tribal tax agreements.
     Any agreement entered under this chapter must comply with this section.
      1.   The agreement must include:
           a.   A statement that the parties to the agreement are not forfeiting any legal rights to
                apply each party's respective taxes by entering an agreement, except as
                specifically set forth in the agreement;
           b.   A statement recognizing the sovereign rights of the state and the tribe or tribes;
                and
           c.   A statement that:
               (1)   The rights of each party must be determined by the terms of the agreement
                     with respect to the taxes subject to the agreement;
               (2)   Neither party may seek additional entitlement or seek to deny entitlement on
                     any federal ground, including federal pre-emption, whether statutorily
                     provided for or otherwise with respect to the taxes that are the subject of an
                     agreement; and
               (3)   Both parties shall defend the agreement from attack by third parties.
     2.   Any tribally owned entity or other entity owned in whole or part by a tribal member,
          whether chartered under state law or tribal law, and operating within the boundaries of
          a reservation, is subject to the state's tax or taxes and regulatory requirements of the
          tax subject to an agreement.
     3.   The tax commissioner retains authority to collect, administer, and enforce the taxes
          subject to an agreement under this chapter, including the authority to audit, assess,
          refund, credit, or determine the exempt or nonexempt status of any transaction, for
          taxes collected within the boundaries of a reservation in this state in the manner
          provided by the applicable state laws.
     4.   Any controversy or claim between the tribe or tribes and the state, arising out of or
          relating to an agreement under this chapter, is subject to binding arbitration in
          accordance with the processes and procedures provided in the agreement between
          the tribe or tribes and the state. Any issues concerning the jurisdiction of the state to
          impose a tax are expressly excluded from the scope of the arbitration.
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      5.   An agreement under this chapter must give the tax commissioner, after consulting with
           the governor, and a tribe or tribes the authority to terminate an agreement with or
           without cause.
      6.   An agreement may begin no sooner than the first day of a calendar quarter which is at
           least ninety days after the agreement is signed by both parties. The tribe or tribes and
           the state must provide the initial population required by sections 57-39.10-03 and
           57-39.10-04 no fewer than sixty days before the effective date of the agreement.
      57-39.10-03. Alcoholic beverages wholesale tax agreement requirements.
      The governor may enter an alcoholic beverages wholesale tax agreement with a tribe or
 tribes if the agreement complies with section 57-39.10-02 and this section.
     1.   The taxes subject to an agreement under this section are the state's alcoholic
          beverages wholesale taxes under chapters 5-01, 5-02, and 5-03, as may be amended
          subsequently by the legislative assembly, for alcoholic beverages sold by licensed
          wholesalers, domestic wineries, domestic distilleries, microbrew pubs, brewer taproom
          licensees, and direct shippers, for delivery to licensed retailers or sale directly to
          consumers located within the exterior boundaries of the Fort Berthold Reservation,
          that portion of the Lake Traverse Reservation located in this state, the Spirit Lake
          Reservation, that portion of the Standing Rock Reservation located in this state, or the
          Turtle Mountain Reservation.
     2.   A tribe or tribes shall impose taxes equal to the state's alcoholic beverages wholesale
          taxes on all sales of alcoholic beverages sold by licensed wholesalers, domestic
          wineries, domestic distilleries, microbrew pubs, brewer taproom licensees, and direct
          shippers, for delivery to all persons within the boundaries of the reservation in this
          state.
     3.   Chapters 5-01, 5-02, and 5-03, and title 81 of the North Dakota Administrative Code
          govern the collection and administration of the taxes subject to an agreement under
          this section.
     4.   The amount of tax revenue allocated to the tribe pursuant to an agreement under this
          section must be equal to an amount determined by multiplying the enrolled
          membership of the tribe by the state alcohol revenue per capita. The state alcohol
          revenue per capita is the quarterly collections of the state's alcoholic beverages
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           wholesale taxes designated for deposit in the state general fund divided by the state's
           total population as determined in the most recent actual or estimated census data
           published by the United States census bureau.
      5.   Except as provided in subsection 6 of section 57-39.10-02, the enrolled membership
           of the tribe must be certified to the state by September thirtieth of each year during the
           term of the agreement. The enrolled membership of the tribe must consist of the
           number of enrolled members of the tribe physically residing within the exterior
           boundaries of the portion of the tribe's reservation located in this state. The enrolled
           membership of the tribe must be based on the tribe's enrollment office records, the
          bureau of Indian affairs enrollment records, or other records maintained by the tribe.
          The previous year's certified enrollment number must be used if the tribe does not
          issue a certification by September thirtieth, unless the tribe demonstrates the certified
          enrollment number has increased or decreased. The manner in which the state and
          tribe resolve issues arising under this subsection must be specified in the agreement.
     57-39.10-04. Tobacco products wholesale tax agreement requirements.
     The governor may enter a tobacco products wholesale tax agreement with a tribe or tribes if
 the agreement complies with section 57-39.10-02 and this section.
     1.   The taxes subject to an agreement under this section are the state's tobacco products
          wholesale taxes under chapter 57-36, as may be amended subsequently by the
          legislative assembly, for tobacco products sold by licensed wholesalers for delivery to
          licensed retailers or sold by licensed retailers directly to consumers within the exterior
          boundaries of the Fort Berthold Reservation, that portion of the Lake Traverse
          Reservation located in this state, the Spirit Lake Reservation, that portion of the
          Standing Rock Reservation located in this state, or the Turtle Mountain Reservation.
     2.   A tribe or tribes shall impose taxes equal to the state's tobacco products wholesale
          taxes on all tobacco products sold by licensed wholesalers for delivery to licensed
          retailers or sold by licensed retailers directly to customers within the boundaries of the
          reservation in this state.
     3.   Chapters 57-36 and title 81 of the North Dakota Administrative Code govern the
          administration of the taxes subject to an agreement under this section.
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      4.   The amount of tax revenue allocated to the tribe pursuant to an agreement under this
           section must be equal to an amount determined by multiplying the enrolled
           membership of the tribe by the state tobacco revenue per capita. The state tobacco
           revenue per capita is the quarterly collections of the state's tobacco products
           wholesale taxes designated for deposit in the state general fund divided by the state's
           total population as determined in the most recent actual or estimated census data
           published by the United States census bureau.
      5.   Except as provided in subsection 6 of section 57-39.10-02, the enrolled membership
           of the tribe must be certified to the state by September thirtieth of each year during the
          term of the agreement. The enrolled membership of the tribe must consist of the
          number of enrolled members of the tribe physically residing within the exterior
          boundaries of the portion of the tribe's reservation located in this state. The enrolled
          membership of the tribe must be based on the tribe's enrollment office records, the
          bureau of Indian affairs enrollment records, or other records maintained by the tribe.
          The previous year's certified enrollment number must be used if the tribe does not
          issue a certification by September thirtieth, unless the tribe demonstrates the certified
          enrollment number has increased or decreased. The manner in which the state and
          tribe resolve issues arising under this subsection must be specified in the agreement.
     57-39.10-05. Agreement requirements.
     The governor may enter an alcohol beverages gross receipts tax agreement with a tribe or
 tribes if the agreement complies with the requirements of section 57-39.10-02 and this section.
     1.   The taxes subject to an agreement under this chapter are the state's sales, use, and
          gross receipts taxes under chapter 57-39.6, as may be amended subsequently by the
          legislative assembly, for taxable transactions and activities occurring exclusively within
          the exterior boundaries of the Fort Berthold Reservation, that portion of the Lake
          Traverse Reservation located in this state, the Spirit Lake Reservation, that portion of
          the Standing Rock Reservation located in this state, or the Turtle Mountain
          Reservation.
     2.   Chapters 57-39.2 and 57-39.6, and title 81 of the North Dakota Administrative Code
          govern the administration of the taxes subject to an agreement under this section.
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      3.   The governor and the tribe or tribes must agree the tribe or tribes may not impose any
           direct or indirect tribal tax or fee on retailers, transactions, or activities subject to the
           tax agreement. This subsection does not apply to tribal employment rights office fees.
      4.   The agreement must provide:
           a.   A statement that a taxpayer may not be required to pay both the state tax and the
                tribal tax but shall pay only one tax to one government in an amount established
                by the agreement; and
           b.   A statement that the state and the tribal government shall cooperate to collect
                only one tax and share or refund the revenue as specified in the agreement.
     5.   The amount of tax revenue allocated to the tribe pursuant to an agreement under this
          section must be equal to an amount determined by multiplying the enrolled
          membership of the tribe by the state alcoholic beverages gross receipts tax revenue
          per capita. The state alcoholic beverages gross receipts tax revenue per capita is the
          quarterly collections of the state's alcoholic beverages gross receipts tax designated
          for deposit in the state general fund divided by the state's total population as
          determined in the most recent actual or estimated census data published by the
          United States census bureau.
     6.   Except as provided in subsection 6 of section 57-39.10-02, the enrolled membership
          of the tribe must be certified to the state by September thirtieth of each year during the
          term of the agreement. The enr