N.D. Admin. Code 81-03-09-32

Current through Supplement No. 394, October, 2024

Section 81-03-09-32 - Special rules - In general

Both North Dakota Century Code section 57-38.1-18 and article IV(18) of North Dakota Century Code section 57-59-01 provide that if the other allocation and apportionment provisions of either North Dakota Century Code chapter 57-38.1 or article IV of North Dakota Century Code chapter 57-59 do not fairly represent the extent of the taxpayer's business activity in this state, the taxpayer may petition for or the tax commissioner may require, in respect to all or any part of the taxpayer's business activity, if reasonable:

1. Separate accounting;

2. The exclusion of any one or more of the factors;

3. The inclusion of one or more additional factors which will fairly represent the taxpayer's business activity in this state; or

4. The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer's income.

North Dakota Century Code section 58-38.1-18 and article IV(18) of North Dakota Century Code section 57-59-01 permit a departure from the other allocation and apportionment provisions of North Dakota Century Code chapters 57-38.1 and 57-59 only in limited and specific cases. North Dakota Century Code section 57-38.1-18 or article IV(18) of North Dakota Century Code section 57-59-01 may be invoked only in specific cases where unusual fact situations, which ordinarily will be unique and nonrecurring, produce incongruous results under the other apportionment and allocation provisions contained in North Dakota Century Code chapters 57-38.1 and 57-59.

In the case of certain industries such as air transportation, rail transportation, ship transportation, trucking, television, radio, motion pictures, and various types of professional athletics, the foregoing sections in respect to the apportionment formula do not set forth appropriate procedures for determining the apportionment factors.

Nothing in North Dakota Century Code section 57-38.1-18 and article IV(18) of North Dakota Century Code section 57-59-01 or in sections 81-03-09-32, 81-03-09-33, and 81-03-09-34 shall preclude the tax commissioner from establishing appropriate procedures under North Dakota Century Code sections 57-38.1-10 through 57-38.1-17 and article IV(10) through IV(17) of North Dakota Century Code section 57-59-01 for determining the apportionment factors for each such industry, but such procedures shall be applied uniformly.

General Authority: NDCC 57-38-56

Law Implemented: NDCC 57-38.1-18, 57-59-01 (art.IV(18))

N.D. Admin Code 81-03-09-32