Chapter 323 — Chapter 323

ORS 323.005 Short title. ORS 323.005 to 323.482 may be cited as the Cigarette Tax Act. [1965 c.525 §§1,2; 2009 c.33 §31]

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ORS 323.010 Definitions for ORS 323.005 to 323.482. As used in ORS 323.005 to 323.482, unless the context requires otherwise

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ORS 323.015 “Distribution,” “distributor” and “distributor engaged in business in this state” defined. As used in ORS 323.005 to 323.482, unless the context requires otherwise

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ORS 323.030 Tax imposed; rate; exclusiveness; only one distribution taxed. (1) Every distributor shall pay a tax upon distributions of cigarettes at the rate of 29 mills for the distribution of each cigarette in this state

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ORS 323.031 Additional tax imposed; rate. (1) Notwithstanding ORS 323.030 (2) and in addition to and not in lieu of any other tax, every distributor shall pay a tax upon distributions of cigarettes at the rate of 30 mills for the distribution of each cigarette in this state

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ORS 323.035 Distributions by manufacturers to licensed distributors exempted. The taxes imposed by ORS 323.005 to 323.482 do not apply to distributions of cigarettes by the manufacturer to a licensed distributor. [1965 c.525 §19; 2003 c.804 §6]

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ORS 323.040 Sales to common carriers in interstate or foreign passenger service exempted; tax on carriers. The taxes imposed by ORS 323.005 to 323.482 do not apply to the sale of cigarettes by a distributor to a common carrier engaged in interstate or foreign passenger service or to a person authorized to sell cigarettes on the facilities of the carrier. Whenever cigarettes are sold by distributors to common carriers engaged in interstate or foreign passenger service for use or sale on facilities of the carriers, or to persons authorized to sell cigarettes on those facilities, the tax imposed by this section may not be levied with respect to sales of the cigarettes by the distributors, but a tax is hereby levied upon the carriers or upon the persons authorized to sell cigarettes on the facilities of the carriers, as the case may be, for the privilege of making these sales in Oregon at the same rate that is imposed upon the distribution of cigarettes in this state for each cigarette sold. The common carriers and authorized persons shall pay the tax imposed by this section and file reports with the Department of Revenue as provided in ORS 323.355. [1965 c.525 §20; 1985 c.78 §1; 2003 c.804 §7]

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ORS 323.045 [1965 c.525 §23; repealed by 1999 c.602 §1]

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ORS 323.050 Storage in bonded warehouses exempted. The taxes imposed by ORS 323.005 to 323.482 do not apply to cigarettes stored in a bonded warehouse and that are nontax paid under the provisions of chapter 52 of the Internal Revenue Act of 1954, as amended. [1965 c.525 §22; 2003 c.804 §8]

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ORS 323.055 Sales to federal installations and veterans’ institutions exempted. The taxes imposed by ORS 323.005 to 323.482 do not apply to

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ORS 323.060 Consumer exemption; payment of tax in certain cases. (1) The taxes imposed by ORS 323.005 to 323.482 do not apply to the use or consumption of untaxed cigarettes transported to this state in a single lot or shipment of not more than 199 cigarettes, or of not more than 199 untaxed cigarettes obtained at one time from any of the instrumentalities listed in ORS 323.055 (1)

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ORS 323.065 Claim for exemption. Any claim for exemption from tax under ORS 323.005 to 323.482 shall be made to the Department of Revenue in the manner the department prescribes. [1965 c.525 §29; 2003 c.804 §11]

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ORS 323.068 Prepayment of tax. Every distributor who sells or possesses for sale unstamped cigarettes in this state shall prepay all taxes imposed under ORS 323.005 to 323.482 prior to the sale of the cigarettes to any person in Oregon by purchasing cigarette tax stamps sold pursuant to ORS 323.005 to 323.482 and affixing those stamps to the unstamped packages of cigarettes. [2003 c.804 §3]

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ORS 323.070 [1965 c.525 §26; repealed by 1971 c.416 §3]

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ORS 323.075 Distributor to collect tax on certain sales. Every distributor engaged in business in this state and selling or accepting orders for cigarettes with respect to the sale of which the taxes imposed by ORS 323.005 to 323.482 are inapplicable shall, at the time of making the sale or accepting the order or, if the purchaser is not then obligated to pay the taxes with respect to the distribution of the cigarettes, 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 Department of Revenue. [1965 c.525 §27; 1981 c.797 §8]

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ORS 323.080 Manufacturers’ agreements for prepayment. Manufacturers may enter into agreements with the Department of Revenue for the prepayment of the tax on nonexempt cigarettes given away for advertising and any other purpose. [1965 c.525 §32]

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ORS 323.085 Presumptions regarding distribution and prepayment of tax. (1) Unless the contrary is established, it shall be presumed that all cigarettes acquired by a distributor are untaxed cigarettes, and that all cigarettes manufactured in this state or transported to this state, and no longer in the possession of the distributor, have been distributed

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ORS 323.086 [1989 c.866 §3; repealed by 1995 c.79 §179]

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ORS 323.087 [1989 c.866 §4; repealed by 1995 c.79 §179]

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ORS 323.089 [1989 c.866 §5; repealed by 1995 c.79 §179]

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ORS 323.091 [1989 c.866 §6; repealed by 1995 c.79 §179]

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ORS 323.105 Distributor’s license. (1) Any person engaging or seeking to engage in the sale of cigarettes as a distributor shall file an application for a distributor’s license with the Department of Revenue. The application shall be on a form prescribed by the department

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ORS 323.106 Certification of intent to comply with reporting, recordkeeping and directory participation requirements. A person who files an application for a distributor’s license under ORS 323.105 shall include with the application a written statement certifying that the person will comply with the provisions of ORS 180.435 and 180.440. [2003 c.801 §14]

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ORS 323.107 Wholesaler’s license. (1) Any person engaging or seeking to engage in the sale of cigarettes as a wholesaler shall file an application for a wholesaler’s license with the Department of Revenue. The application shall be on a form prescribed by the department. A person may not engage in business as a wholesaler without a license. A wholesaler’s license may be canceled, suspended, revoked or reinstated by the department as in the case of a distributor’s license pursuant to ORS 323.140

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ORS 323.110 Security required for licensing; conditions of bond. The Department of Revenue, to ensure compliance with ORS 323.005 to 323.482, shall require a licensee or an applicant for a license as distributor to deposit with it such security as the department may determine. The amount of the security shall be fixed by the department but shall not be greater than two times the estimated average monthly liability shown in the monthly reports, determined in such manner as the department deems proper. The amount of the security may be increased or decreased by the department subject to the limitations herein provided. Except as provided in ORS 323.120, the security shall be in the form of a bond or bonds executed by the distributor as principal and by a corporation, authorized to engage in business as a surety company in Oregon under ORS 742.350 to 742.370, as surety, payable to the State of Oregon through its Department of Revenue, conditioned upon the payment of all taxes, penalties and other obligations of the distributor arising under ORS 323.005 to 323.482. [1965 c.525 §35; 1995 c.79 §180; 2009 c.33 §32]

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ORS 323.115 Provision for withdrawal of surety. Every bond shall contain a provision substantially to the effect that when the surety exercises its right to withdraw as surety, the withdrawal shall be effective on the first day of the calendar month after receipt of the notice by the Department of Revenue if the notice is received on or before the 15th day of the month, otherwise the withdrawal shall be effective on the first day of the second calendar month after receipt of the notice by the department. [1965 c.525 §36]

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ORS 323.120 Form of security. In lieu of a bond or bonds a distributor, under such conditions as the Department of Revenue may prescribe, may deposit with the State Treasurer an amount of lawful money equivalent to the amount of the bond or bonds otherwise required, or the distributor may deposit an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008, or readily salable bonds or other obligations of the United States, the State of Oregon, or any county of this state of an actual market value of not less than the amount of the bond or bonds otherwise required by ORS 323.005 to 323.482. The State Treasurer shall immediately notify the department as to the time of receipt and the amount of money or value of the irrevocable letter of credit or of bonds received by the State Treasurer. [1965 c.525 §37; 1991 c.331 §54; 1997 c.631 §459]

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ORS 323.125 Liquidation of security to pay delinquency. Upon receipt of a certificate of the Department of Revenue setting forth the amount of a distributor’s delinquencies, the State Treasurer shall pay to the department the amount so certified from the money deposited with the State Treasurer by the distributor or from the amounts received from the sale of bonds or other obligations deposited with the State Treasurer by the distributor. Securities deposited with the State Treasurer which have a prevailing market price may be sold by the State Treasurer for the purposes of this section at private sale at a price not lower than the prevailing market price thereof. [1965 c.525 §38]

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ORS 323.130 Issuance and display of license; circumstances for not issuing license; appeal. (1) Upon receipt of a completed application, the statement required by ORS 323.106 and bonds or other security required by the Department of Revenue under ORS 323.005 to 323.482, the department may issue a distributor’s license to the applicant. A separate license shall be issued for each place of business of the distributor within the state. A license is valid only for engaging in business as a distributor at the place designated on the license. The license shall at all times be conspicuously displayed at the place for which issued. The license is not transferable and is valid until suspended or revoked

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ORS 323.135 [1965 c.525 §40; 1971 c.734 §36; 1995 c.650 §41; repealed by 2003 c.804 §68]

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ORS 323.140 Cancellation, revocation or suspension of license; appeal. (1) The Department of Revenue may cancel, revoke or suspend the license held by a distributor whenever the distributor fails to

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ORS 323.155 [1965 c.525 §42; 1999 c.62 §1; repealed by 2003 c.804 §68]

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ORS 323.160 Tax stamps; rules. (1) The Department of Revenue shall furnish cigarette tax stamps for sale to distributors required under ORS 323.068 to prepay the taxes imposed under ORS 323.005 to 323.482

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ORS 323.165 Sale of stamps. (1) Unaffixed stamps shall not be sold, exchanged or in any manner transferred by a distributor to another person without prior written approval of the Department of Revenue

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ORS 323.170 Payment for stamps; distributor compensation. (1) Stamps shall be sold to a licensed distributor at their denominated values less a sum allowed as compensation to a distributor for services in affixing stamps to packages as required by ORS 323.005 to 323.482. Payment for stamps shall be made at the time of purchase, provided that a licensed distributor, subject to the conditions and provisions of ORS 323.005 to 323.482, may be permitted to defer stamp payments

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ORS 323.175 Application for credit purchases of stamps. A licensed distributor may apply to the Department of Revenue to fix the maximum amount of deferred-payment purchases of stamps that the distributor may make in any calendar month. Upon receipt of the application and the security deposit required pursuant to ORS 323.110, the department shall fix the maximum amount. The department at any time may designate the sales locations where the distributor may make deferred-payment purchases of stamps and fix the amount of deferred-payment purchases that the distributor may make within each monthly period at the designated sales location. [1965 c.525 §48; 1999 c.62 §5]

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ORS 323.180 Authorization of agent; revocation. A distributor shall authorize in writing those persons who may order purchases of stamps for the account of the distributor at a location where stamps are sold. The authorization shall continue in effect until written notice of revocation of the authority is delivered at the sales location in a manner prescribed by the Department of Revenue. [1965 c.525 §50; 1999 c.62 §6]

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ORS 323.185 Date when payment for credit purchases due; extension. (1) Amounts owing for stamps purchased on the deferred-payment basis for a calendar month shall be due and payable on or before the 20th day of the next calendar month. Payments shall be made by a remittance payable to the Department of Revenue

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ORS 323.190 Suspension of credit. The Department of Revenue may suspend without prior notice a distributor’s privilege to purchase stamps on the deferred-payment basis or may reduce the amount of permissible monthly purchases fixed for the distributor, if the distributor fails to pay promptly for stamps when payment is due, if the bond or bonds of the distributor are canceled, become void, impaired, or unenforceable for any reason, or if in the opinion of the department, collection of any amounts unpaid or due from the distributor under ORS 323.005 to 323.482 are jeopardized. [1965 c.525 §51; 1999 c.62 §8]

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ORS 323.195 Penalty for nonpayment of credit purchase; interest. Any distributor who fails to pay any amount owing to the purchase of stamps within the time required, shall pay a penalty of 10 percent of the amount due in addition to the amount plus interest at the rate established under ORS 305.220 from the date on which the amount became due and payable until the date of payment. [1965 c.525 §52; 1982 s.s.1 c.16 §17; 1999 c.62 §9; 2017 c.278 §15]

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ORS 323.205 Manufacturers’ reports. Every manufacturer selling and shipping cigarettes into this state to other than a distributor licensed by this state shall deliver with each sale or consignment of cigarettes a written statement containing the name or trade name of both the seller and the purchaser, the date of delivery, the quantity of cigarettes, and the trade name or brand thereof, and within 10 days shall deliver a duplicate of each such statement to the Department of Revenue. Each cancellation or modification of the written statement and any other information necessary to the reconciliation of accounts shall be filed with the department by the manufacturer at the earliest possible date. [1965 c.525 §54]

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ORS 323.210 [1965 c.525 §55; repealed by 1971 c.260 §1 (323.211 enacted in lieu of 323.210)]

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ORS 323.211 Posting of certain information on vending machines required; seizure for failure to comply. Every distributor and dealer or other person engaging in the sale of cigarettes through the use of one or more vending machines, must affix in a conspicuous place on each machine, a card or decal bearing the name, telephone number, address, and place of business of the operator or owner who regularly places cigarettes in the vending machine. If a person fails to comply with this section the Department of Revenue may seize the vending machine and its contents. [1971 c.260 §2 (enacted in lieu of 323.210)]

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ORS 323.215 Records of vending machine operators. Every distributor and dealer or other person engaging in the sale of cigarettes through the use of one or more vending machines shall keep a detailed record of each vending machine operated for the sale of cigarettes, showing the location of the machine and the date of placing the machine on location. [1965 c.525 §56]

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ORS 323.220 Maintenance and preservation of records. Any distributor and any person dealing in, transporting or storing cigarettes in this state shall keep, on the premises, receipts, invoices and other pertinent records related to cigarette transactions, transportation or storage, in such form as the Department of Revenue may require. Each record shall be preserved for five years from the time to which it relates. During the five-year period and at any time prior to destruction of records, the department may give written notice to a distributor not to destroy records described in the notice without written permission from the department. Notwithstanding other provisions of law, reports and returns filed with the department shall be preserved by the department for at least five years. [1965 c.525 §57; 2003 c.804 §19]

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ORS 323.225 Transporters’ permits and records. (1) Any transporter seeking to possess or acquire untaxed cigarettes for transportation or transport upon the highways, roads or streets of this state shall obtain a permit from the Department of Revenue authorizing the transporter to possess or acquire for transportation or transport the untaxed cigarettes, and shall have the permit in the transporting vehicle during the period of transportation of the cigarettes. The application for the permit shall be in such form and shall contain such information as may be prescribed by the department. The department may issue a permit for a single load or shipment or for a number of loads or shipments to be transported under specified conditions

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ORS 323.230 Examination of records by department; supplemental reports; rules. The Department of Revenue or its authorized representative, upon oral or written demand, may make such examinations of the books, papers, records and equipment of persons dealing in, transporting, or storing cigarettes and such other investigations as it may deem necessary in carrying out the provisions of ORS 323.005 to 323.482. In addition to any other reports required under ORS 323.005 to 323.482, the department may, by rule or otherwise, require additional, other, or supplemental reports from distributors, dealers, transporters, common and private carriers, warehouse operators, bailees and other persons and prescribe the form, including verification, of the information to be given and the times for filing of such additional, other or supplemental reports. [1965 c.525 §59; 2011 c.83 §23]

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ORS 323.235 Subpoenas; enforcement. (1) The Department of Revenue shall have authority, by order or subpoena to be served with the same force and effect and in the same manner that a subpoena is served in a civil action in the circuit court, or the Oregon Tax Court, to require the production at any time and place it may designate of any books, papers, accounts or other information necessary to the carrying out of ORS 323.005 to 323.482, and may require the attendance of any person having knowledge in the premises, and may take testimony and require proof material for the information, with power to administer oaths to such person

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ORS 323.240 Search warrants; seizure and forfeiture. Whenever the Department of Revenue has good reason to believe that any cigarettes are being kept, sold, offered for sale or given away in violation of the provisions of ORS 323.005 to 323.482 or rules issued under its authority, it may make affidavit of that fact, describing the place or thing to be searched, before any judge of any court in this state, and such judge shall issue a search warrant directed to the sheriff, any constable, police officer, or duly authorized agent of the department, commanding the sheriff, constable, police officer or duly authorized agent of the department to enter and diligently search any building, room in a building, place or vehicle as may be designated in the affidavit and search warrant, and to seize such cigarettes together with any vending machine or receptacle containing them and any vehicle carrying them, and to arrest the person in possession or control thereof. If, upon the return of such warrant, it shall appear that tax payable upon the cigarettes seized has not been paid or prepaid, if prepayment is required under ORS 323.068, the cigarettes, containers and vehicle, if any, shall be forfeited to the state and disposed of pursuant to ORS 323.245 or 323.248. [1965 c.525 §61; 2003 c.804 §21]

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ORS 323.245 Forfeiture of cigarettes and other objects; sale or redemption of other objects. (1) Whenever the Department of Revenue discovers any cigarettes subject to tax under ORS 323.005 to 323.482 and with respect to which the tax has not been paid or prepaid, if prepayment is required under ORS 323.068, it is hereby authorized and empowered forthwith to seize and take possession of the untaxed cigarettes together with any vending machine or receptacle in which they are held for sale and any vehicle in which they are being transported. The seized cigarettes, vending machine, receptacle or vehicle, not including money contained in the vending machine or receptacle, shall be forfeited to the state, and the clear proceeds shall be deposited with the State Treasury in the Common School Fund. The department may, within a reasonable time thereafter, by public notice at least 20 days before the date of sale, sell the forfeited vending machines, receptacles and vehicles at public sale. Forfeited cigarettes constitute contraband cigarettes subject to ORS 323.248

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