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Business Taxes Law Guide—Revision 2024
Cigarette and Tobacco Products Tax Law
Revenue and Taxation Code
Division 2. Other Taxes
Part 13. Cigarette Tax
Chapter 2. Imposition of Tax.
Article 1. Tax on Distributors
Section 30108
30108. Collection by distributor. (a) Every distributor engaged in business in this state and selling or accepting orders for cigarettes or tobacco products with respect to the sale of which the tax imposed under this part is inapplicable shall, at the time of making the sale or accepting the order or, if the purchaser is not then obligated to pay the tax with respect to his or her distribution of the cigarettes or tobacco products, at the time the purchaser becomes so obligated, collect the tax from the purchaser, if the purchaser is other than a licensed distributor, and shall give to the purchaser a receipt therefor in the manner and form prescribed by the board.
(b) Every person engaged in business in this state and making gifts of untaxed cigarettes or tobacco products as samples with respect to which the tax imposed under this part is inapplicable shall, at the time of making the gift or, if the donee is not then obligated to pay the tax with respect to his or her distribution of the cigarettes or tobacco products, at the time the donee becomes so obligated, collect the tax from the donee, if the donee is other than a licensed distributor, and shall give the donee a receipt therefor in the manner and form prescribed by the board. This section shall not apply to those distributions of cigarettes or tobacco products that are exempt from tax under Section 30105.5.
(c) "Engaged in business in the state" means and includes any of the following:
(1) Maintaining, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or storage place, or other place of business.
(2) Having any representative, agent, salesperson, canvasser or solicitor operating in this state under the authority of the distributor or its subsidiary for the purpose of selling, delivering, or the taking of orders for cigarettes or tobacco products.
(d) The taxes required to be collected by this section constitute debts owed by the distributor, or other person required to collect the taxes, to the state.
History—Stats. 1961, p. 2500, operative July 1, 1961, revised the wording of the first paragraph. Stats. 1971, p. 420, in effect March 4, 1972. Reletters the section and imposes the tax on samples in new (b) and adds (c) and (d). Stats. 1989, Ch. 634, in effect September 21, 1989, added "or tobacco products" after "cigarettes", added "and 30123" after "Section 30101", and added "or her" after "his" throughout the text, and added a comma after "storage place" in subdivision (c)(1). Stats. 2001, Ch. 251 (AB 1123), in effect January 1, 2002, added ", and 30131.2" after "Section 30101 and 30123" in subdivisions (a) and (b); and substituted "salesperson" for "salesman" after "Having any representative, agent," in subdivision (c) paragraph (2). Indian tribe must collect tax.—Legal incidence of cigarette tax falls on non-Indian purchasers of cigarettes purchased from Indian tribe, and state may require the tribe to collect the tax. Cal. State Board of Equalization v. Chemehuevi Indian Tribe, (1985) 474 U.S. __, 88 L. Ed. 2d 9. Proposition 56, Section 5.3, approved by voters at the November 8, 2016 election, in effect November 9, 2016, substituted "under this part" for "by Sections 30101, 30123, and 30131.2" after "of which the tax imposed" in subdivisions (a) and (b); and substituted "that" for "which" after "distributions of cigarettes and tobacco products" in the last sentence of subdivision (b).
Indian tribe still must collect tax.—Federal laws related to Indian economic development and financing did not preempt the state cigarette tax. The state's interest in raising revenue did not interfere with tribal government, and the state was not required to share its revenue with the tribe. Chemehuevi Indian Tribe v. California State Board of Equalization, (1986) 800 F.2d 1446.