26-52-317. Food and food ingredients.

26-52-317. Food and food ingredients. (a)(1) The Secretary of the Department of Finance and Administration shall determine the following conditions: (A) That federal law authorizes the state to collect sales and use tax from some or all of the sellers that have no physical presence in the State of Arkansas and that make sales of taxable goods and services to Arkansas purchasers; (B) That initiating the collection of sales and use tax from these sellers would increase the net available general revenues needed to fund state agencies, services, and programs; and (C)(i) That during a six-month consecutive period, the amount of net available general revenues attributable to the collection of sales and use tax from sellers that have no physical presence in the State of Arkansas is equal to or greater than one hundred fifty percent (150%) of sales and use tax collected under subsection (c) of this section and § 26-53-145 on food and food ingredients. (ii) The secretary shall make the determination under subdivision (a)(1)(C)(i) of this section on a monthly basis following the determination that the conditions under subdivision (a)(1)(A) of this section have been met. (2)(A) The secretary shall make a monthly determination as to whether the aggregate amount of deductions from net general revenues attributable to the following during the most recently ended six-month consecutive period, as compared with the same six-month period in the prior year, has declined by thirty-five million dollars ($35,000,000) or more: (i) The Educational Adequacy Fund; (ii) Bonds issued under the Arkansas College Savings Bond Act of 1989, § 6-62-701 et seq.; (iii) Bonds issued under the Arkansas Higher Education Technology and Facility Improvement Act of 2005, § 6-62-1101 et seq.; (iv) The City-County Tourist Facilities Aid Fund; and (v) Bonds issued under the Arkansas Water, Waste Disposal and Pollution Abatement Facilities Financing Act of 1997 and the Arkansas Water, Waste Disposal, and Pollution Abatement Facilities Financing Act of 2007, § 15-20-1301 et seq. (B)(i) In making the determination in this subdivision (a)(2), the secretary shall consider all economic factors existing at the time of the determination that could potentially affect the decline in the aggregate amount of deductions, including without limitation pending litigation. (ii) If the consideration of additional economic factors under subdivision (a)(2)(B)(i) of this section results in a determination that the decline in the aggregate amount of deductions is not likely to remain at that reduced level, the secretary shall conclude that the conditions in this subdivision (a)(2) have not been met. (3) When the secretary finds that all of the conditions in either subdivision (a)(1) or subdivision (a)(2) of this section have been met, then the gross receipts or gross proceeds taxes levied under subsection (c) of this section shall be levied at the rate of zero percent (0%) on the sale of food and food ingredients beginning on the first day of the calendar quarter that is at least thirty (30) days following the determination of the secretary. (b) As used in this section: (1) “Food” and “food ingredients” mean the same as defined in § 26-52-103 except that “food” and “food ingredients” do not include prepared food; and (2) “Prepared food” means the same as defined in § 26-52-103 except that “prepared food” does not include: (A) Food that is only cut, repackaged, or pasteurized by the seller; or (B) Eggs, fish, meat, and poultry, and foods containing these raw animal foods requiring cooking by the consumer to prevent food-borne illnesses as recommended by the United States Food and Drug Administration in its 2005 Food Code, § 3-401.11, as it existed on January 1, 2007. (c)(1) Beginning July 1, 2011, in lieu of the gross receipts or gross proceeds taxes levied on food and food ingredients under §§ 26-52-301 and 26-52-302, there is levied a tax on the gross receipts or gross proceeds derived from the sale of food and food ingredients at the rate of one and three-eighths percent (1.375%), to be distributed as follows: (A) Seventy-six and six-tenths percent (76.6%) of the taxes, interest, penalties, and costs received by the secretary under this subdivision (c)(1) shall be deposited as general revenues; (B) Eight and five-tenths percent (8.5%) of the taxes, interest, penalties, and costs received by the secretary under this subdivision (c)(1) shall be deposited into the Property Tax Relief Trust Fund; and (C) Fourteen and nine-tenths percent (14.9%) of the taxes, interest, penalties, and costs received by the secretary under this subdivision (c)(1) shall be deposited into the Educational Adequacy Fund. (2) The gross receipts or gross proceeds taxes levied under subdivision (c)(1) of this section shall be collected, reported, and paid in the same manner and at the same time as is prescribed by law for the collection, reporting, and payment of all other Arkansas gross receipts taxes. (d) The gross receipts or gross proceeds derived from the sale of food and food ingredients shall continue to be subject to the: (1) Excise tax levied under Arkansas Constitution, Amendment 75, § 2; and (2) All municipal and county gross receipts taxes. (e) The Department of Finance and Administration shall promulgate rules to implement the provisions of this section.