SUBPART E. UNFAIR SALES LAW

§421. Definitions

As used in this Subpart:

A. "Retailer" means any person engaged in the business of making sales at retail within this state, or if any person is engaged in the business of making sales both at retail and at wholesale, "retailer" shall apply only to the retail portion of the business.

B. "Wholesaler" means any person engaged in the business of making sales at wholesale within this state, or if any person is engaged in the business of making sales both at wholesale and at retail, "wholesaler" shall apply only to the wholesale portion of the business.

C. "Replacement cost" means the cost per unit at which the merchandise sold or offered for sale could have been bought by the seller at any time within thirty days prior to the date of sale or the date upon which it is offered for sale by the seller if bought in the same quantity as the seller's last purchase of the merchandise.

D. "Sell at retail," "sales at retail," and "retail sale" mean any transfer for a valuable consideration, made in the ordinary course of trade or in the usual prosecution of the seller's business, of title to tangible movable property to the purchaser for consumption or use other than resale, further processing or manufacturing.

E. "Sell at wholesale," "sales at wholesale," and "wholesale sales" mean any transfer for a valuable consideration, made in the ordinary course of trade or the usual conduct of the seller's business, of title to tangible movable property to the purchaser for purposes of resale, further processing or manufacturing.

F. "Cost to the retailer" means the invoice cost, or the replacement cost, of the merchandise to the retailer, whichever is lower;

(1) Less all trade discounts except customary discounts for cash;

(2) Plus; in the following order:

(a) Freight charges not otherwise included in the invoice cost or the replacement cost of the merchandise;

(b) Cartage to the retail outlet if done or paid by the retailer, which cartage cost, in the absence of proof of a lesser cost, shall be three-fourths of one per cent of the cost to the retailer after adding freight charges but before adding cartage and markup; and,

(c) A markup to cover a proportionate part of the cost of doing business, which markup, in the absence of proof of a lesser cost, shall be six per cent of the cost to the retailer after adding freight charges and cartage.

G. "Cost to the wholesaler" means the invoice cost, or the replacement cost, of the merchandise to the wholesaler, whichever is lower;

(1) Less all trade discounts except customary discounts for cash and discounts from the state or any governmental agency allowed for the payment of collection of any taxes;

(2) Plus; in the following order:

(a) Freight charges, not otherwise included in the invoice cost or the replacement cost of the merchandise;

(b) Cartage cost which shall be three-fourths of one per cent of the cost to the wholesaler after adding freight charges but before adding cartage, any existing tobacco stamp excise tax and markup, and any motor fuels excise tax;

(c) Any existing tobacco stamp excise tax; and,

(d) A markup to cover a proportionate part of the cost of doing business which markup, in the absence of proof of a lesser cost, shall be two percent of the cost to the wholesaler after adding freight charges, cartage, any existing tobacco stamp excise tax, and any motor fuels excise tax; and,

(e) Any motor fuels excise tax.

H. In determining "cost to the retailer" in those cases where the retailer buys at wholesale and receives the wholesalers' profits and discounts on merchandise to be sold at retail, both the wholesale markup of two per cent and the retail markup of six percent, in the absence of proof of a lesser cost, shall be added to cover a proportionate part of the cost of doing business.

I. When one or more items are advertised, offered for sale, or sold with one or more other items at a combined price, or are advertised, offered as a gift, or given with the sale of one or more items, each and all of the items shall for the purposes of this Sub-part be considered, advertised, offered for sale, or sold, and the price of each item shall be governed by the provisions of Sub-sections F, G, and H of this Section.

J. "Cost to the retailer" and "cost to the wholesaler" as defined by Sub-sections F, G, and H of this Section means bona fide costs. Purchases made by retailers and wholesalers at prices which cannot be justified by prevailing market conditions within this state shall not be used in determining "cost to the retailer" and "cost to the wholesaler."

Amended by Acts 1956, No. 121, §1; Acts 1999, No. 430, §1.