§ 68-301. Definitions.

For purposes of Section 301 et seq. of this title:

1.  The term "cigarette" is defined to mean and include all rolled tobacco or any substitute therefor, wrapped in paper or any substitute therefor and weighing not to exceed three (3) pounds per thousand cigarettes;

2.  The term "person" is defined to mean and include any individual, company, partnership, joint venture, joint agreement, association (mutual or otherwise), limited liability company, corporation, estate, trust, business trust receiver, or trustee appointed by any state or federal court, or otherwise, syndicate, or any political subdivision of the state or combination acting as a unit, in the plural or singular number;

3.  The term "wholesaler", “distributor” and/or "jobber" is defined to mean and include a person, firm or corporation organized and existing, or doing business, primarily to sell cigarettes to, and render service to retailers in the territory such person, firm or corporation chooses to serve, and that:

a.              purchases cigarettes directly from the manufacturer,

b.              at least seventy-five percent (75%) of whose gross sales are made at wholesale,

c.              handles goods in wholesale quantities and sells through salespersons, advertising and/or sales promotion devices,

d.              carries at all times at its principal place of business a representative stock of cigarettes for sale, and

e.              comes into the possession of cigarettes for the purpose of selling them to retailers or to persons outside or within the state who might resell or retail such cigarettes to consumers.

In addition to the foregoing, and irrespective of the percentage or type of sales, the term "wholesaler", “distributor” and/or “jobber” shall also include all purchasers of cigarettes making purchases directly from the manufacturer for distribution at wholesale or retail sale and this shall not affect the requirements relating to retail licenses;

4.  The term "retailer" is defined to be:

a.              a person who comes into the possession of cigarettes for the purpose of selling, or who sells them at retail, or

b.              a person, not coming within the classification of wholesaler, distributor and/or jobber as herein defined, having possession of more than one thousand cigarettes;

5.  The term "consumer" is defined to be a person who receives or who in any way comes into possession of cigarettes for the purpose of consuming them, giving them away, or disposing of them in a way other than by sale, barter or exchange;

6.  The term "Tax Commission" is defined to mean the Oklahoma Tax Commission;

7.  The term "sale" and/or "sales" is hereby defined to be and declared to include sales, barters, exchanges and every other manner, method and form of transferring the ownership of personal property from one person to another, and is also declared to be the use or consumption in this state in the first instance of cigarettes received from without the state or of any other cigarettes upon which the tax has not been paid.  The term "first sale" shall mean and include the first sale or distribution of cigarettes in intrastate commerce or the first use or consumption of cigarettes within this state;

8.  The term "stamp" as herein used shall mean the stamp or stamps by use of which:

a.              the tax levied pursuant to the provisions of Section 301 et seq. of this title is paid,

b.              the tax levied pursuant to the provisions of Section 349 of this title is paid, or

c.              the payment in lieu of taxes authorized pursuant to a compact entered into by the State of Oklahoma and a federally recognized Indian tribe or nation pursuant to the provisions of subsection C of Section 346 of this title is paid;

9.  The term "drop shipment" shall mean and include any delivery of cigarettes received by any person within this state when payment for such cigarettes is made to the shipper or seller by or through a person other than the consignee;

10.  The term "distributing agent" shall mean and include every person in this state who acts as an agent of any person outside the state by receiving cigarettes in interstate commerce and storing such cigarettes subject to distribution or delivery upon order from the person outside the state to distributors, wholesale dealers and retail dealers, or to consumers.  The term "distributing agent" shall also mean and include any person who solicits or takes orders for cigarettes to be shipped in interstate commerce to a person in this state by a person residing outside of Oklahoma, the tax not having been paid on such cigarettes;

11.  The term "vending machine" shall mean and include any coin operating machine, contrivance, or device, by means of which cigarettes are sold or dispensed in their original container;

12.  The term "use" means and includes the exercise of any right or power over cigarettes incident to the ownership or possession thereof, except that it shall not include the sale of cigarettes in the regular course of business;

13. a.The term “delivery sale” means any sale of cigarettes to a consumer in Oklahoma where either:

(1)the purchaser submits the order for such sale by means of a telephonic or other method of voice transmission, the mails or any other delivery service, or the Internet or other online service, or

(2)the cigarettes are delivered by use of the mails or other delivery service.

b.A sale of cigarettes which satisfies the criteria in subparagraph a of this paragraph shall be a delivery sale regardless of whether the seller is located within or outside of Oklahoma.

c.A sale of cigarettes not for personal consumption to a person who is a wholesale dealer or a retail dealer shall not be a delivery sale.

d.For purposes of this paragraph, any sale of cigarettes to an individual in Oklahoma shall be treated as a sale to a consumer unless such individual is licensed as a distributor or retailer of cigarettes by the Tax Commission;

14.  The term “delivery service” means any person, including but not limited to the United States Postal Service, that is engaged in the commercial delivery of letters, packages, or other containers;

15.  The term “manufacturer” means any person who manufactures, fabricates, assembles, processes, or labels a finished cigarette; or imports, either directly or indirectly, a finished cigarette for sale or distribution in this state;

16.  The term “mails” or “mailing” means the shipment of cigarettes through the United States Postal Service;

17.  The term “shipping container” means a container in which cigarettes are shipped in connection with a delivery sale; and

18.  The term “shipping documents” means bills of lading, airbills, or any other documents used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

Added by Laws 1965, c. 195, § 2, emerg. eff. June 10, 1965.  Amended by Laws 1988, c. 47, § 13, operative July 1, 1988; Laws 1992, c. 339, § 14, eff. Jan. 1, 1993; Laws 1993, c. 366, § 28, eff. Sept. 1, 1993; Laws 2003, c. 475, § 1, eff. Nov. 1, 2003.