(a) Section 13(a)(2). An establishment engaged in selling lumber and
building materials may qualify as an exempt retail or service
establishment under section 13(a)(2) of the Act if it meets all the
requirements of that exemption. It must appear that:
(1) The establishment is not in an enterprise described in section
3(s) of the Act or, if it is, its annual dollar volume of sales
(exclusive of excise taxes at the retail level which are separately
stated) is less than $250,000; and
(2) More than 50 percent of the establishment's annual dollar volume
of sales of goods or services is made within the State in which the
establishment is located; and
(3) 75 percent or more of the establishment's annual dollar volume
of sales of goods or services (or of both) is made from sales which are
not for resale and are recognized as retail sales of goods or services
in the industry.
These requirements are further explained in Secs. 779.301 through
779.343.
(b) Section 13(a)(4). An establishment which makes or processes
lumber and building materials which it sells may qualify as an exempt
establishment under section 13(a)(4) of the Act if it meets all the
requirements (see Arnold v. Kanowsky, 361 U.S. 388) of that exemption.
It must appear that:
(1) The establishment qualifies as an exempt retail establishment
under section 13(a)(2) (see paragraph (a) of this section and
Sec. 779.350); and
(2) The establishment is recognized as a retail establishment in the
industry (see Sec. 779.347 and paragraph (c) of this section); and
(3) The goods which such establishment makes or processes for sale
are made or processed at the retail establishment which sells them (see
Sec. 779.348); and
(4) More than 85 percent of the annual dollar volume derived by the
retail establishment from sales of goods so made or processed therein is
made within the State in which the establishment is located (see
Secs. 779.349, 779.339 through 779.341).
(c) Establishments recognized as retail in the industry. An
establishment which meets the requirements for exemption under section
13(a)(4) which are stated in paragraphs (b)(1), (3), and (4) of this
section is recognized as retail establishment in the industry within the
meaning of paragraph (b)(2) of this section if its annual dollar volume
of sales of goods made or processed at the establishment does not exceed
50 percent of the annual dollar volume which it derives from sales that
are recognized as retail and are not made for resale.
(d) Establishments lacking a ``retail concept.'' The exemptions
provided by sections 13(a)(2) and 13(a)(4) of the Act do not apply to
establishments in an industry in which there is no traditional concept
of retail selling or servicing (see Sec. 779.316), such as the
establishment of a building contractor (see Sec. 779.317; Goldberg v.
Dakota Flooring Co., 15 WH Cases 305), or a factory (see Sec. 779.347).
