N.H. Rev. Stat. § 77-A:3 — NH Code / Title V / Chapter 77-A / Section 3
77-A:3 Apportionment.
Status: in_force

I. A business organization which derives gross business profits from business activity both within and without this state, and which is subject to a net income tax, a franchise tax measured by net income, or a capital stock tax in another state or is subject to the jurisdiction of another state to impose a net income tax or capital stock tax upon it, whether or not such tax is actually imposed, shall apportion its gross business profits so as to allocate to this state a fair and equitable proportion of such business profits. Except as provided in this section, such apportionment shall be made in the following manner: (a) For taxable periods ending before December 31, 2022: (1) The business organization's gross business profits shall be apportioned on the basis of the following 3 factors: (A) The percentage of value of the total real and tangible personal property owned, rented and employed by the business organization everywhere as is owned, rented and employed by it in the operation of its business in this state. Property owned by the business organization shall be valued at its original cost. Property rented by the business organization shall be valued at 8 times the net annual rental rate. Net annual rental rate is the annual rental rate paid by the business organization less any annual rental rate received by the business organization from subrentals. (B) The percentage of total compensation paid by the business organization to employees everywhere as is paid by the business organization to employees for services rendered within this state. Such compensation is deemed to be disbursed for services in this state if the service is performed entirely within this state, or if the service is performed both within and without this state and the service performed without this state is incidental to the service within this state, or some of the service is performed in this state and (i) the base of operations or, if there is no base of operations, the place from which the service is directed or controlled is in this state, or (ii) the base of operations or the place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual performing such service resides within this state. (C) The percentage of the total sales, including charges for services, made by the business organization everywhere as is made by it within this state: (i) Sales of tangible personal property are made in this state if the property is delivered or shipped to a purchaser, other than the United States government, within this state regardless of f.o.b. point or other conditions of sale, or the property is shipped from an office, store, warehouse, factory or other place of storage in this state and the purchaser is the United States government, or the business organization is not taxable in the state of the purchaser. (ii) Sales other than sales of tangible personal property are in this state if the business organization's market for the sales is in this state, as follows: 1. In the case of sale, rental, lease, or license of real property, if and to the extent the property is located in this state; 2. In the case of rental, lease, or license of tangible personal property, if and to the extent the property is located in this state; 3. In the case of sale of a service, if and to the extent the service is delivered to a location in this state; 4. In the case of sale, rental, lease, or license of intangible property, if and to the extent the property is used in this state; 5. In the case of interest income, if and to the extent the debtor or encumbered property is located in this state; 6. In the case of dividend income, if and to the extent the business organization's commercial domicile is in this state; and 7. In the case of other income, if and to the extent the income is derived from sources in this state. (iii) In the case of sales other than sales of tangible personal property, if the state or states of assignment cannot be determined, the state or states of assignment shall be reasonably approximated. (iv) In the case of sales other than sales of tangible personal property, if the taxpayer is not taxable in a state to which a sale is assigned, or if the state of assignment cannot be determined or reasonably approximated, such sale shall be excluded from the denominator of the sales factor. (2) A fraction, the numerator of which shall be the property factor in subparagraph I(a)(1)(A) plus the compensation factor in subparagraph I(a)(1)(B) plus 2 multiplied by the sales factor in subparagraph I(a)(1)(C) and the denominator of which is 4, shall be applied to the total gross business profits (less foreign dividends) of the business organization to ascertain its gross business profits in this state. (b) For taxable periods ending on or after December 31, 2022, the business organization's gross business profits shall be apportioned by multiplying the total gross business profits (less foreign dividends) of the business organization by the sales factor in subparagraph I(a)(1)(C). II. (a) If the applicable method of apportionment in paragraph I does not fairly represent the business organization's business activity in this state, the business organization may petition for, or the commissioner may require, in respect to all or any part of the business organization's business activity, if reasonable, the employment of any other method to effect an equitable apportionment of the business organization's gross business profits. (b) For foreign dividends from unitary sources, the following formula shall be used to modify factors relating to included dividends: (1) Determine a percentage for each dividend payor consisting of dividends paid divided by taxable income which has been computed using United States standards. (2) Apply this percentage to the dividend payor's foreign property, payroll, and sales for taxable periods ending before December 31, 2022, or to the dividend payor's foreign sales for taxable periods ending on or after December 31, 2022. (3) Sum the results in subparagraph (2) for all dividend payors. (4) Add the result in subparagraph (3) to the denominators of the combined water's edge group. The numerator will remain the New Hampshire numerator. (5) Apply the resulting percentage to the foreign dividends less such amount of foreign dividends previously included in gross business profits and subject to tax as global intangible low-taxed income as determined in accordance with section 951A of the United States Internal Revenue Code as defined in RSA 77-A:1, XX adjusted by the deduction provided in RSA 77-A:4, XIX. (6) Add this amount to the amount of New Hampshire taxable business profits computed pursuant to RSA 77-A:3, I. III. When 2 or more related business organizations are engaged in a unitary business, as defined in RSA 77-A:1, XIV, a part of which is conducted in this state by one or more members of the group, the income attributable to this state shall be determined by means of the applicable combined apportionment factors of the unitary business group in accordance with paragraphs I and II. IV. The business organization is entitled to a hearing by the commissioner on request in connection with any change in its apportionment procedure and has the right of appeal from the commissioner's determination as provided in RSA 21-J:28-b.