[12-18-2023 by Ord. No. 2023-20]
This chapter shall be known as the "Taxation of Cannabis Sales."
[12-18-2023 by Ord. No. 2023-20]
A. Legislation. On February 22, 2021, Governor Murphy signed into law
P.L. 2021, c. 16, known as the "New Jersey Cannabis Regulatory, Enforcement
Assistance, and Marketplace Modernization Act" (the "Act"), which legalizes the recreational use of cannabis by adults
21 years of age or older and establishes a comprehensive regulatory
and licensing scheme for commercial recreational (adult-use) cannabis
operations, use and possession.
B. The Act establishes six marketplace classes of licensed businesses,
including:
(1) Class 1 cannabis cultivator license for facilities involved in growing
and cultivating cannabis;
(2) Class 2 cannabis manufacturer license for facilities involved in
the manufacturing, preparation, and packaging of cannabis items;
(3) Class 3 cannabis wholesaler license for facilities involved in obtaining
and selling cannabis items for later resale by other licensees;
(4) Class 4 cannabis distributor license for businesses involved in transporting
cannabis plants in bulk from one licensed cultivator to another licensed
cultivator, or cannabis items in bulk from any type of licensed cannabis
business to another;
(5) Class 5 cannabis retailer license for locations at which cannabis
items and related supplies are sold to consumers; and
(6) Class 6 cannabis delivery license for businesses providing courier
services for consumer purchases that are fulfilled by a licensed cannabis
retailer in order to make deliveries of the purchased items to a consumer,
and which service would include the ability of a consumer to make
a purchase directly through the cannabis delivery service which would
be presented by the delivery service for fulfillment by a retailer
and then delivered to a consumer.
C. A cannabis business is defined as any business that holds one or
more State of New Jersey issued license for Class 1 through Class
6 cannabis business and a vertically integrated cannabis business
is defined as any cannabis business that holds more than one cannabis
license.
D. Section 40a(1) of the Act permits a municipality to adopt an ordinance
imposing a transfer tax on the sale of cannabis or cannabis items
by a cannabis establishment that is located in the municipality on
receipts from the sale of cannabis by a cannabis cultivator to another
cannabis cultivator; receipts from the sale of cannabis items from
one cannabis establishment to another cannabis establishment; receipts
from the retail sales of cannabis items by a cannabis retailer to
retail consumers who are 21 years of age or older; or any combination
thereof, and to set its own rate or rates, but in no case exceeding
2% of the receipts from each sale by a cannabis cultivator; 2% of
the receipts from each sale by a cannabis manufacturer; 1% of the
receipts from each sale by a cannabis wholesaler; and 2% of the receipts
from each sale by a cannabis retailer.
E. Section 40a(2) of the Act requires a municipality enacting a transfer
tax to also enact a user tax.
[12-18-2023 by Ord. No. 2023-20]
A. As used in this chapter, the following terms shall have the meanings
indicated:
CANNABIS
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CANNABIS CULTIVATOR
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CANNABIS ESTABLISHMENT
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CANNABIS ITEMS
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CANNABIS MANUFACTURER
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CANNABIS RETAILER
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CANNABIS WHOLESALER
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
CONSUMER
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
PREMISES
Shall mean the same as that term is defined in Section 3
of P.L. 2021, c. 16 (N.J.S.A. 24:6I-33).
TAXPAYER BUSINESS
Shall mean for the purposes of this chapter any cannabis
business defined in this subsection.
B. All other terms as defined in the "New Jersey Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act," also referenced herein as the "Act" or "P.L. 2021, c.
16," are hereby incorporated herein by reference and shall have the
meanings set forth in the Act, as may be amended or superseded.
[12-18-2023 by Ord. No. 2023-20]
A. Transfer tax.
(1) There is hereby imposed a transfer tax in the amount of 2% on receipts
from the sale of cannabis as follows:
(a)
From the sale of cannabis by a cannabis cultivator to another
cannabis establishment.
(b)
From the sale of cannabis items from one cannabis manufacturer
to another cannabis establishment.
(c)
From the sale of cannabis items from a cannabis retailer to
the consumer, if retail cannabis sales become permitted in Hightstown
Borough.
(2) There is hereby imposed a transfer tax in the amount of 1% on receipts
of the sale of cannabis as follows:
(a)
From the sale of cannabis items from one cannabis wholesaler
to another cannabis establishment.
B. Collection of transfer tax. Such tax shall be collected or paid,
and remitted to the municipality by the cannabis establishment from
the cannabis establishment purchasing or receiving the cannabis or
cannabis item, or from the consumer at the point of sale, on behalf
of the municipality by the cannabis retailer selling the cannabis
item to that consumer. The transfer tax shall be stated, charged,
and shown separately on any sales slip, invoice, receipt, or other
statement or memorandum of the price paid or payable, or equivalent
value of the transfer, for the cannabis or cannabis item. No cannabis
establishment required to collect a transfer tax imposed hereunder
shall advertise or hold out to any person or to the public in general,
in any manner, directly or indirectly, that the transfer tax or user
tax will not be separately charged and stated to another cannabis
establishment or the consumer, or that the transfer tax will be refunded
to the cannabis establishment or the consumer.
C. User tax. There shall also be imposed a user tax, at the equivalent transfer tax rates, on any concurrent license holder, as permitted by Section 33 of P.L. 2021, c. 16 (N.J.S.A. 24:6I-46), operating more than one cannabis establishment. The user tax shall be imposed on the value of each transfer or use of cannabis or cannabis items not otherwise subject to the transfer tax imposed pursuant to Subsections
A and
B of this section, from the license holder's establishment that is located in the municipality to any of the other license holder's establishments, whether located in the municipality or another municipality. The value of each transfer or use of cannabis or cannabis items for user tax computation shall equal the statewide average retail price of an ounce of usable cannabis for consumer purchase, as determined by the Cannabis Regulatory Commission, less 10% or the third-party dispensary wholesale price, whichever is less.
D. Relationship to other taxes. A transfer tax or user tax imposed pursuant
to this section shall be in addition to any other tax imposed by law.
Any transaction for which the transfer tax or user tax is imposed,
or could be imposed, pursuant to this section, other than those which
generate receipts from the retail sales by cannabis retailers, shall
be exempt from the tax imposed under the "Sales and Use Tax Act,"
P.L. 1966, c. 30 (N.J.S.A. 54:32B-1 et seq.). The transfer tax or
user tax shall be paid by the cannabis establishment purchasing or
receiving any cannabis or cannabis item from any cannabis cultivator
or cannabis manufacturer or cannabis wholesaler licensed by the municipality,
and shall be collected and remitted to the municipality by the cannabis
establishment licensed by the municipality. The transfer tax or user
tax shall be stated, charged, and shown separately on any sales slip,
invoice, receipt, or other statement or memorandum of the price paid
or payable, or equivalent value of the transfer, for the cannabis
or cannabis item.
E. Tax liability. Every cannabis establishment required to collect a
transfer tax or user tax imposed pursuant to this chapter shall be
personally liable for the transfer tax or user tax imposed, collected,
or required to be collected under this section. Any cannabis establishment
shall have the same right with respect to collecting the transfer
tax or user tax from another cannabis establishment or the consumer
as if the transfer tax or user tax was a part of the sale and payable
at the same time, or with respect to nonpayment of the transfer tax
or user tax by the cannabis establishment or consumer, as if the transfer
tax or user tax was a part of the purchase price of the cannabis or
cannabis item, or equivalent value of the transfer of the cannabis
or cannabis item, and payable at the same time; provided, however,
that the chief financial officer of the Borough of Hightstown which
imposes the transfer tax or user tax shall be joined as a party in
any action or proceeding brought to collect the transfer tax or user
tax. No cannabis establishment required to collect a transfer tax
or user tax imposed by pursuant to this chapter shall advertise or
hold out to any person or to the public in general, in any manner,
directly or indirectly, that the transfer tax or user tax will not
be separately charged and stated to another cannabis establishment
or the consumer, or that the transfer tax or user tax will be refunded
to the cannabis establishment or the consumer.
[12-18-2023 by Ord. No. 2023-20]
A. Unless otherwise determined by the Borough Council, the chief financial officer of Hightstown is charged with the administration and enforcement of the provisions of this chapter, and is empowered to prescribe, adopt, promulgate and enforce rules and regulations relating to any matter pertaining to the administration and enforcement of this chapter, including provisions for the reexamination and corrections of declarations and statements, and of payments alleged or found to be incorrect, or as to which an overpayment is claimed or found to have occurred, and to prescribe forms necessary for the administration of this chapter. The Borough Council may determine at any time, in its sole discretion, to retain an outside third-party financial consultant (the "outside consultant") to exercise all of the duties and responsibilities of the chief financial officer as set forth above, with the exception of the power of enforcement, levying of fines and penalties and entering into agreements with the State of New Jersey. In the event that the Borough Council retains such an outside consultant, the fee schedule for the outside consultant shall be presented, for informational purposes only, to the cannabis business before such audit and other work is undertaken. The cannabis business shall be responsible for reimbursement to the Borough of the fees incurred by the Borough to the outside consultant for services rendered in its examination of the business's accounts for the determination of tax to be paid. A copy of the invoice shall be sent to the cannabis business by the municipality after the municipality is billed for the outside consultant's work. The cannabis business shall reimburse the municipality for the outside consultant's fees and expenses within 60 days thereafter. Failure to timely reimburse the municipality shall invoke §
4-13-5 of the Borough Code. Should a cannabis business fail or refuse to provide adequate information to the chief financial officer or the outside consultant to determine the amount of tax due, the chief financial officer or the outside consultant may use information provided from other sources (i.e., the NJ Cannabis Regulatory Commission or NJ Department of Treasury) to determine the amount of tax liability, and the licensee shall be subject to the penalties set forth in §
4-13-5 of the Borough Code.
B. It shall be the duty of the chief financial officer or the outside
consultant, as applicable, to collect and receive the taxes, fines,
and penalties imposed by this chapter. It shall also be the duty of
the chief financial officer or the outside consultant, as applicable,
to keep a record showing the date of such receipt. The chief financial
officer is authorized to enter into agreements with the State of New
Jersey to obtain information to facilitate administration of the taxes.
The chief financial officer is authorized to issue a ruling upon written
request of a taxpayer or upon his or her own volition.
C. The chief financial officer or the outside consultant, as applicable,
is hereby authorized to examine the books, papers and records of any
taxpayer to verify the accuracy of any declaration or financial statement,
or if no declaration or financial statement was filed, to ascertain
the tax due. Every taxpayer is hereby directed and required to give
to the chief financial officer, or to the outside consultant, as applicable,
the means, facilities and opportunity for such examinations and investigations,
as are hereby authorized or otherwise permitted by law.
D. In the event that the transfer tax or user tax imposed pursuant to
this chapter is not paid when due by a cannabis establishment, the
unpaid balance, and any interest accruing thereon, shall be a lien
on the parcel of real property comprising the cannabis establishment's
premises in the same manner as all other unpaid municipal taxes, fees,
or other charges. The lien shall be superior and paramount to the
interest in the parcel of any owner, lessee, tenant, mortgagee, or
other person, except the lien of municipal taxes, and shall be on
a parity with and deemed equal to the municipal lien on the parcel
for unpaid property taxes due and owing in the same year.
E. The chief financial officer or outside consultant, as applicable,
shall file in the office of its tax collector a statement showing
the amount and due date of the unpaid balance and identifying the
lot and block number of the parcel of real property that comprises
the delinquent cannabis establishment's premises. The lien shall
be enforced as a municipal lien in the same manner as all other municipal
liens are enforced.
F. Returns and records filed by a licensee, and the records and files of the chief financial officer or the outside consultant, as applicable, respecting the administration of the transfer and user tax, shall be considered confidential and privileged and neither the chief financial officer nor any employee or outside consultant engaged in the administration thereof or charged with the custody of any such records or files, nor any former officer or employee, nor any person who may have secured information therefrom shall divulge, disclose, use for their own personal advantage, or examine for any reason other than a reason necessitated by the performance of official duties any information obtained from the said returns, records or files or from any examination or inspection of the premises or property of any person, or to an officer of a public entity for a reason authorized by N.J.S.A. 54:50-9. Neither the chief financial officer nor any employee or outside consultant engaged in such administration or charged with the custody of any such returns, records or files shall be required to produce any of them for the inspection of any person or for use in any action or proceeding except when the records or files or the facts shown thereby are directly involved in an action or proceeding to collect or challenge the assessment of transfer or user taxes hereunder, or where the determination of the action or proceeding will affect the validity or amount of the claim of the Borough hereunder, or in any lawful proceeding for the investigation and prosecution of any violation of this Chapter
31 or of the criminal provisions of the State Uniform Tax Procedure Law or of any state tax law, or where production is required
pursuant to the New Jersey Open Public Records Act (N.J.S.A. 47:1A-1
et seq.) or the Common Law, or the New Jersey Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act (P.L. 2021, c. 16) or other applicable law.
[12-18-2023 by Ord. No. 2023-20]
A. Requirement to keep records. Taxpayers liable for the transfer and/or
user tax are required to keep such records as will enable the filing
of true and accurate financial statements of the tax, and such records
shall be preserved for a period of not less than three years from
the filing date or due date, whichever is later, in order to enable
the chief financial officer or any agent designated by him to verify
the correctness of the declarations or financial statements filed.
If records are not available in the Borough of Hightstown to support
the financial statements which were filed or which should have been
filed, the taxpayer will be required to make them available to the
chief financial officer either by producing them at a location in
the municipality or by paying for the expenses incurred by the chief
financial officer or his agent in traveling to the place where the
records are regularly kept.
B. Tax payments and financial statements. All cannabis establishments
operating in the Borough of Hightstown shall be required to file a
transfer and/or user tax statement with the chief financial officer
to report their sales during each calendar quarter and the amount
of tax in accordance with the provisions of this chapter. Financial
statements shall be filed and payments of tax imposed for the preceding
calendar quarter shall be made on or before the last day of April,
July, October, and January, respectively. A taxpayer who has overpaid
the transfer tax, or who believes it is not liable for the tax, may
file a written request on an amended financial statement with the
chief financial officer for a refund or a credit of the tax.