February 3, 1982

Senator Richard Gregerson 
South Dakota Legislature 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 82-9

Sales Tax on Entertainment

Dear Senator Gregerson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

A business hired a band to play live music.  The band did not pay sales tax as required by SDCL Chapter 10-45.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

If the band does not pay sales tax, must the business pay a use tax?

SDCL 10-46-6 provides: 

The use in this state of tangible personal property or services, the gross receipts from the sale of which are to be included in the measure of the tax imposed by chapter 10-45, and any amendments made or which may hereafter be made thereto, is hereby specifically exempted from the tax imposed by this chapter.

In view of § 10-46-6, it is my opinion that the above activity, which is subject to sales tax, is exempt from use tax.

Respectfully submitted,

Mark V. Meierhenry
Attorney General