STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 27, 1969

Lowell Schmidt, Commissioner of Revenue
State Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-75

Butter Substitute Tax Stamp refund on unused stamps. SDCL 1967, 10-51-11

Dear Mr. Schmidt:

You have requested my official opinion as to whether you are authorized to allow refund and reimbursement on butter substitute tax stamps which have been returned to you uncancelled but which have been theretofore affixed to cartons containing butter substitutes which are found for some reason no longer saleable.

SDCL 1967 10-51-11 provides:

. . When any person who has purchased stamps in accordance with the provision of this chapter shall for any reason return to the state treasurer any unused uncancelled stamps, such person may be reimbursed for such returned stamps, on warrants drawn by the state auditor, based on duly itemized vouchers and approved by the state treasurer…” (Underscoring supplied.)

By the provisions of Chapter 276, Laws of 1967, the duties heretofore imposed on the State Treasurer have now evolved upon you as Commissioner of Revenue and therefore it is your obligation to determine under what conditions a refund may be made.

I call your attention to the official opinion found at 1953-54 AGR 171, 172 relating to the same subject wherein after stating that due to a mechanical defect some stamps had been affixed, in part, to butter substitute packages:

". . . The reimbursement statute in no wise contemplates the defective or improper application of the stamps as an unused stamp for, obviously, it has been used. . . ."

On a very similar subject, the cigarette tax laws, SDCL 1967, 10-50-20, provide that any unused uncancelled stamps presented by a licensed distributor may be redeemed by the treasurer (Commissioner of Revenue), are at the report found at 1946-47 AGR 314 my predecessor held that:

". . . Stamps that have been affixed to packages of cigarettes cannot, in my opinion, come within the classification of unused stamps, even though uncancelled, and therefore are not redeemable. . . ."

Likewise in the report found at 1955-56 AGR 267, the then Attorney General confirmed the earlier opinion and stated that such stamps do not come within the purview of the refund statute and are therefore not redeemable. I concur with these opinions with regard to the cigarette stamps and also hold that the language of the butter substitute tax law being the same, stamps that have been affixed to packages do not come within the refund statute and therefore no refund should be allowed on the same.

Respectfully submitted,

Gordon Mydland
Attorney General