Current through Register Vol. 6, March 22, 2024
(1) The following
two listings set forth the in-state activities that are presently treated as
"unprotected activities" or "protected activities." The mere inclusion of an
activity on the listing of "protected activities" is not a statement or
admission that the activity is afforded any protection under P.L. 86-272.
(2) The following in-state
activities are considered unprotected activities (assuming they are not of a de
minimis level) , are not considered as either solicitation of orders, or
contributory to, or otherwise protected under P.L. 86-272, and will cause
otherwise protected sales to lose their protection under P.L. 86-272 :
(a) making repairs or providing maintenance
or service to the property sold or to be sold;
(b) collecting current or delinquent
accounts, whether directly or by third parties, through assignment or
otherwise;
(c) investigating
credit worthiness;
(d) installing
or supervising installation at or after shipment or delivery;
(e) conducting training courses, seminars, or
lectures for personnel other than personnel involved only in solicitation;
(f) providing any kind of
technical assistance or service including, but not limited to, engineering
assistance or design service, when one of the purposes thereof is other than
the facilitation of the solicitation of orders;
(g) investigating, handling, or otherwise
assisting in resolving customer complaints, other than mediating direct
customer complaints when the sole purpose of such mediation is to gain
influence for the sales personnel with the customer;
(h) approving or accepting orders;
(i) repossessing property;
(j) securing deposits on sales;
(k) picking up or replacing damaged or
returned property;
(l) hiring,
training, or supervising personnel other than personnel involved only in
solicitation;
(m) using agency
stock checks or any other instrument or process by which sales are made within
Montana by sales personnel;
(n)
maintaining a sample or display room for a period greater than two weeks (14
days) at any one location within Montana during the tax year;
(o) carrying samples for sale, exchange, or
distribution in any manner for consideration or other value;
(p) owning, leasing, using, or maintaining
any of the following facilities or properties in-state:
(i) repair shop;
(ii) parts department;
(iii) any kind of office other than an
in-home office as described and permitted under (r) and (3)(b);
(iv) warehouse;
(v) meeting place for directors, officers, or
employees;
(vi) stock of goods
other than samples for sales personnel or those used entirely ancillary to
solicitation;
(vii) telephone
answering service that is publicly attributed to the company or to employees or
agents of the company in their representative capacity;
(viii) mobile stores; i.e., vehicles with
drivers who are sales personnel making sales from the vehicles; and
(ix) real property or fixtures to real
property of any kind;
(q) consigning for sale stock of goods or
other tangible personal property to any person, including an independent
contractor;
(r) maintaining, by
any employee or other representative, an office or place of business of any
kind (other than an in-home office located within the residence of the employee
or representative) that:
(i) is not publicly
attributed to the company or to the employee or representative of the company
in an employee or representative capacity, and so long as the use of such
office is limited to soliciting and receiving orders from customers, for
transmitting such orders outside the state for acceptance or rejection by the
company, or for such other activities that are protected under P.L. 86-272 or
under (3) ;
(ii) lists a telephone
number or other public listing within the state for the company or for an
employee or representative of the company in such capacity or other indications
through advertising or business literature that the company or its employee or
representative can be contacted at a specific address within the state, (such a
listing shall normally be determined as the company maintaining within Montana
an office or place of business attributable to the company or to its employee
or representative in a representative capacity) . However, the normal
distribution and use of business cards and stationery identifying the
employee's or representative's name, address, telephone and fax numbers, and
affiliation with the company shall not, by itself, be considered as advertising
or otherwise publicly attributing an office to the company or its employee or
representative; and
(iii) the
maintenance of any office or other place of business in Montana that does not
strictly qualify as an "in-home" office as described above shall, by itself,
cause the loss of protection under this rule. For the purpose of this
subsection, it is not relevant whether the company pays directly, indirectly,
or not at all, for the cost of maintaining such in-home office;
(s) entering into franchising or
licensing agreements, selling or otherwise disposing of franchises and
licenses, or selling or otherwise transferring tangible personal property
pursuant to such franchise or license by the franchisor or licensor to its
franchisee or licensee within the state; or
(t) conducting any activity not listed in (3)
which is not entirely connected to requests for orders, even if such activity
helps to increase purchases.
(3) The following in-state activities will
not cause the loss of protection for otherwise protected sales:
(a) soliciting orders for sales by any type
of advertising;
(b) soliciting of
orders by a Montana resident employee or representative of the company, so long
as such person does not maintain or use any office or other place of business
in Montana other than an "in-home" office as described in (2) (r) ;
(c) carrying samples and promotional
materials only for display or distribution without charge or other
consideration;
(d) furnishing and
setting up display racks and advising customers on the display of the company's
products without charge or other consideration;
(e) providing automobiles to sales personnel
for their use in conducting protected activities;
(f) passing orders, inquiries, and complaints
on to the home office;
(g)
missionary sales activities, e.g., the solicitation of indirect customers for
the company's goods. For example, a manufacturer's solicitation of retailers to
buy the manufacturer's goods from the manufacturer's wholesale customers would
be protected if such solicitation activities were otherwise immune;
(h) coordinating shipment or delivery without
payment or other consideration and providing related information either prior
or subsequent to the placement of an order;
(i) checking of customers' inventories
without a charge (for re-order, but not for other purposes such as quality
control) ;
(j) maintaining a
sample or display room for two weeks (14 days) or less at any one location
within Montana during the tax year;
(k) recruiting, training, or evaluating sales
personnel, including occasionally using homes, hotels, or similar places for
meetings with sales personnel;
(l)
mediating direct customer complaints when the purpose is solely for supporting
the sales personnel with the customer and facilitating requests for orders; or
(m) owning, leasing, using, or
maintaining personal property for use in the employee or representative's
"in-home" office or automobile that is solely limited to conducting protected
activities. The use of personal property such as a cellular telephone,
facsimile machine, duplicating equipment, personal computer and computer
software that is limited to conducting protected solicitation and activity
entirely ancillary to such solicitation or permitted by this rule shall not, by
itself, remove the protection under this rule.
AUTH:
15-1-201,
15-31-313, MCA; IMP:
15-1-601,
15-31-301,
15-31-302,
15-31-303,
15-31-304,
15-31-305,
15-31-306,
15-31-307,
15-31-308,
15-31-309,
15-31-310,
15-31-311,
15-31-312,
MCA