N.D. Admin. Code 81-03-09-29

Current through Supplement No. 394, October, 2024

Section 81-03-09-29 - Sales factor - Sales of tangible personal property in this state

1. Gross receipts from sales of tangible personal property, except sales to the United States government, see section 81-03-09-30, are in this state:

a. If the property is delivered or shipped to a purchaser within this state regardless of the free on board point or other conditions of sale; or

b. If the property is shipped from an office, store, warehouse, factory, or other place of storage in this state and the taxpayer is not taxable in the state of the purchaser.

2. Property shall be deemed to be delivered or shipped to a purchaser within this state if the recipient is located in this state, even though the property is ordered from outside this state.

Example: The taxpayer, with inventory in state A, sold one hundred thousand dollars of its products to a purchaser having branch stores in several states including this state. The order for the purchase was placed by the purchaser's central purchasing department located in state B. Twenty-five thousand dollars of the purchase order was shipped directly to purchaser's branch store in this state. The branch store in this state is the "purchaser within this state" with respect to twenty-five thousand dollars of the taxpayer's sales.

3. Property is delivered or shipped to a purchaser within this state if the shipment terminates in this state, even though the property is subsequently transferred by the purchaser to another state.

Example: The taxpayer makes a sale to a purchaser who maintains a central warehouse in this state at which all merchandise purchases are received. The purchaser reships the goods to its branch stores in other states for sale. All of the taxpayer's products shipped to the purchaser's warehouse in this state is property "delivered or shipped to a purchaser within this state".

4. The term "purchaser within this state" shall include the ultimate recipient of the property if the taxpayer in this state, at the designation of the purchaser, delivers to or has the property shipped to the ultimate recipient within this state.

Example: A taxpayer in this state sold merchandise to a purchaser in state A. Taxpayer directed the manufacturer or supplier of the merchandise in state B to ship the merchandise to the purchaser's customer in this state pursuant to purchaser's instructions. The sale by the taxpayer is "in this state".

5. When property being shipped by a seller from the state of origin to a consignee in another state is diverted while en route to a purchaser in this state, the sales are in this state.

Example: The taxpayer, a produce grower in state A, begins shipment of perishable produce to the purchaser's place of business in state B. While en route, the produce is diverted to the purchaser's place of business in this state in which state the taxpayer is subject to tax. The sale by the taxpayer is attributed to this state.

6. If the taxpayer is not taxable in the state of the purchaser, the sale is attributed to this state if the property is shipped from an office, store, warehouse, factory, or other place of storage in this state.

Example: The taxpayer has its head office and factory in state A. It maintains a branch office and inventory in this state. Taxpayer's only activity in state B is the solicitation of orders by a resident salesman. All orders by the state B salesman are sent to the branch office in this state for approval and are filled by shipment from the inventory in this state. Since taxpayer is immune under Public Law 86-272 from tax in state B, all sales of merchandise to purchasers in state B are attributed to this state, the state from which the merchandise was shipped.

7. If a taxpayer whose salesman operates from an office located in this state makes a sale to a purchaser in another state in which the taxpayer is not taxable and the property is shipped directly by a third party to the purchaser, the following rules apply:

a. If the taxpayer is taxable in the state from which the third party ships the property, then the sale is in such state.

b. If the taxpayer is not taxable in the state from which the property is shipped, then the sale is in this state.

Example: The taxpayer in this state sold merchandise to a purchaser in state A. Taxpayer is not taxable in state A. Upon direction of the taxpayer, the merchandise was shipped directly to the purchaser by the manufacturer in state B. If the taxpayer is taxable in state B, the sale is in state B. If the taxpayer is not taxable in state B, the sale is in this state.

General Authority: NDCC 57-38-56

Law Implemented: NDCC 57-38.1-16, 57-59-01 (art.IV(16))

N.D. Admin Code 81-03-09-29