Current through Register Vol. 35, No. 18, September 24, 2024
A. The telecommunications relay service
surcharge does not apply to receipts of a telecommunications company from
providing intrastate telephone services to an Indian tribe or member thereof on
that tribe's territory if imposition of such a surcharge is prohibited by
federal law. Intrastate telephone service is provided on a tribe's territory
when:
(1) the instrument through which calls
originate or terminate is located on the tribe's territory; and
(2) the service is billed to the Indian tribe
or a member thereof.
B.
The telecommunications company must demonstrate that the intrastate telephone
service is provided to an Indian tribe or member thereof. The
telecommunications company must also demonstrate that the intrastate telephone
service is provided through an instrument located on the tribe's territory and
is billed to the Indian tribe or member thereof. The documents demonstrating
that providing intrastate telephone service is not subject to the
telecommunications relay service surcharge shall be retained in the
telecommunication company's records.
(1) The
first requirement may be met by obtaining a statement signed by the intrastate
telephone service customer that the customer 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 customer's official tribal or BIA census number or, when the
customer's Indian tribe does not maintain an official census system, be
attested to by an official of the customer's Indian tribe confirming this
statement. This statement may also be provided to the telecommunications
company 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 customer is an Indian tribe or member thereof.
(2) The second requirement may be met if the
telecommunications company keeps records adequate to document that the
intrastate telephone service is provided through instruments located on the
customer's tribe's territory. 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. Telecommunications companies selling
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. Intrastate telephone service provided 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 3.21.7.8 NMAC to be a member of
the spouse's Indian tribe.
D. Intrastate telephone service provided in
New Mexico to an Indian tribe or member thereof is subject to the
telecommunications relay service surcharge 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 3.21.7.8 NMAC:
(1) the terms "Indian tribe" and "tribe's
territory" have the meaning set forth for those terms in Section 3.2.4.7
NMAC;
(2) "instrument" includes:
(a) any mobile instrument owned or leased by
an Indian tribe; and
(b) any mobile
instrument owned or leased by a member of an Indian tribe if the billing
address for the mobile instrument is within the tribe's territory;
and
(3)
"telecommunications relay service surcharge" means the telecommunications relay
service surcharge imposed under Section
63-9F-11
NMSA 1978.
F. Section
3.21.7.8 NMAC is retroactively applicable to transactions occurring on or after
July 1, 1993.
