Current through Register Vol. 35, No. 18, September 24, 2024
A. Receipts of a seller from selling
interstate telecommunication services to a purchaser who is an Indian tribe or
member thereof on the tribe's territory are not subject to the interstate
telecommunications gross receipts tax if taxation of such receipts is
prohibited by federal law. Interstate telecommunications service is provided on
a tribe's territory when:
(1) calls originate
or terminate through an instrument on the tribe's territory; and
(2) the service is billed to the Indian tribe
or a member thereof.
B.
The seller must demonstrate that the interstate telecommunications service is
sold to an Indian tribe or member thereof. The seller must also demonstrate
that the interstate telecommunications service originates or terminates through
an instrument located on the tribe's territory and is billed to the Indian
tribe or member thereof. The documents demonstrating that receipts from
providing interstate telecommunications services are not subject to tax shall
be retained in the seller's records.
(1) The
first requirement may be met by obtaining a statement signed by the purchaser
that the purchaser is an Indian tribe or member thereof. In the case of the
Indian tribe itself, the statement must be attested to by a tribal official. In
the case of an individual, the statement must also either specify the
purchaser's official tribal or BIA census number or, when the purchaser's
Indian tribe does not maintain an official census system, be attested to by an
official of the purchaser's Indian tribe confirming this statement. This
statement may also be provided to the seller by the Indian tribe on behalf of
one or more of its members if attested to by a tribal official. Upon request,
the secretary may approve additional methods. This documentation shall be
conclusive evidence, and the only material evidence, that the purchaser is an
Indian tribe or member thereof.
(2)
The second requirement may be met for fixed location instruments if the seller
keeps records adequate to document that interstate calls originate or terminate
through instruments located on the purchaser's tribe's territory and that the
call is billed to the Indian tribe or member thereof. The second requirement
may be met for mobile instruments if the seller keeps adequate records to
document that:
(a) with respect to charges
billed regardless of volume of calls, the purchaser's address is within the
purchaser's tribe's territory; and
(b) with respect to charges for calls, the
call either originates or terminates within the purchaser's tribe's territory.
Sellers of telecommunications services through mobile instruments may estimate
the percentage of receipts for the report month from calls through such
instruments which do not originate or terminate on the purchaser's tribe's
territory. The estimate shall be the total receipts from calls from purchasers
whose address is within the purchaser's tribe's territory for the reporting
period multiplied by the percentage of actual receipts from calls by those
purchasers originating or terminating off the purchaser's tribe's territory
during the previous calendar year. The amount of actual receipts during the
previous calendar year from off-territory calls shall be determined based upon
evidence satisfactory to the department.
C. Receipts from selling interstate
telecommunications services in New Mexico in Indian country to the following
persons are subject to the gross receipts tax:
(1) a person who is not an Indian tribe or
member thereof;
(2) a person who is
an Indian tribe other than the Indian tribe on whose territory the sale takes
place; and
(3) a person who is a
member of an Indian tribe other than the Indian tribe on whose territory the
sale takes place except that, if the person is the spouse of a member of the
Indian tribe on whose territory the sale takes place, that person will be
considered for the purposes of Section 3.21.5.8 NMAC to be a member of the
spouse's Indian tribe.
D. Receipts from selling interstate
telecommunications services in New Mexico to an Indian tribe or member thereof
are subject to the interstate telecommunications gross receipts tax when the
instrument through which the calls originate or terminate is located outside
the tribe's territory, even if the location is within the territory of another
Indian tribe.
E. For the purposes
of Section 3.21.5.8 NMAC, the terms "Indian tribe" and "tribe's territory" have
the meaning set forth for those terms in Section 3.2.4.7 NMAC.
F. Section 3.21.5.8 NMAC is retroactively
applicable to transactions occurring on or after July 1, 1992.
