TITLE 3: TAXATION
CHAPTER 21: TELECOMMUNICATIONS TAXES
PART 5: INTERSTATE TELECOMMUNICATIONS
3.21.5.1 ISSUING AGENCY: Taxation and
Revenue Department, Joseph M. Montoya Building, 1100 South St. Francis Drive,
P.O. Box 630, Santa Fe NM 87504-0630
[5/15/97; 3.21.5.1 NMAC - Rn, 3 NMAC
21.5.1, 1/15/01]
3.21.5.2 SCOPE: Provisions of this part apply to all providers of intrastate
telecommunications service.
[5/15/97; 3.21.5.2 NMAC - Rn, 3 NMAC
21.5.2, 1/15/01]
3.21.5.3 STATUTORY AUTHORITY: Section 9-11-6.2 NMSA 1978.
[5/15/97; 3.21.5.3 NMAC - Rn, 3 NMAC
21.5.3, 1/15/01]
3.21.5.4 DURATION: Permanent.
[5/15/97; 3.21.5.4 NMAC - Rn, 3 NMAC
21.5.4, 1/15/01]
3.21.5.5 EFFECTIVE DATE: 5/15/97, unless a later date is cited at the end of
a section, in which case the later date is the effective date.
[5/15/97; 3.21.5.5 NMAC - Rn & A, 3
NMAC 21.5.5, 1/15/01]
3.21.5.6 OBJECTIVE: The objective of this part is to interpret, exemplify,
implement and enforce the provisions of the Interstate Telecommunications Gross
Receipts Tax Act.
[5/15/97; 3.21.5.6 NMAC - Rn, 3 NMAC
21.5.6, 1/15/01]
3.21.5.7 DEFINITIONS: [Reserved.]
[5/15/97; 3.21.5.7 NMAC - Rn, 3 NMAC
21.5.7, 1/15/01]
3.21.5.8 IMPOSITION BARRED BY FEDERAL LAW - INTERSTATE TELECOMMUNICATIONS
SERVICES IN INDIAN COUNTRY FOR TRIBE OR TRIBAL MEMBERS:
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.
[3/16/95,
5/15/97; 3.21.5.8 NMAC - Rn & A, 3 NMAC 21.5.8, 1/15/01]
3.21.5.9 PERSONS ENGAGED IN PROVIDING INTERSTATE TELECOMMUNICATIONS SERVICES -
HOTELS AND MOTELS PROVIDING INTERSTATE TELECOMMUNICATIONS SERVICE TO GUESTS:
A. Persons engaged in the business of providing interstate
telecommunications in New Mexico are those persons licensed to do so by the
federal communications commission or by any agency of the state of New Mexico
having authority to license providers of interstate or intrastate
telecommunications service.
B Unless the establishment is licensed as required in
Subsection 3.21.5.9A NMAC, hotels, motels and similar establishments offering
interstate telecommunications service to guests in conjunction with the rental
of rooms or other facilities are not “engaging in interstate telecommunications
business” for purposes of the Interstate Telecommunications Gross Receipts Tax
Act. Receipts of the establishment from providing such service are subject to
the provisions of the Gross Receipts and Compensating Tax Act.
C. Section 3.21.5.9 NMAC applies retroactively to
transactions on or after July 1, 1992.
[9/16/92,
5/15/97; 3.21.5.9 NMAC - Rn & A, 3 NMAC 21.5.9, 1/15/01]
HISTORY
OF 3.21.5 NMAC:
Pre-NMAC History:
The material in this part was derived from that previously filed with
the State Records Center:
TRD
Rule TEL-92, Regulations Pertaining to the Interstate Telecommunications Gross
Receipts Tax Act, Section 7-9C-1 to 7-9C-11 NMSA 1978, filed 9/16/92.
TRD
Regulation ITG 3:1, Regulation Pertaining to the Interstate Telecommunications
Gross Receipts Tax Act, Section 7-9C-3 NMSA 1978, filed 3/16/95.
History of Repealed Material: [RESERVED]
NMAC
History:
3
NMAC 21.5, Interstate Telecommunications, filed 5/1/97.
3.21.5
NMAC, Interstate Telecommunications, filed 1/4/01