New Mexico Administrative Code › Title 3 - TAXATION › Chapter 2 - GROSS RECEIPTS TAXES › Part 4 - IMPOSITION AND RATE OF TAX - DENOMINATION AS "GROSS RECEIPTS TAX" › Section 3.2.4.9 - FEDERAL PREEMPTION - TRANSACTIONS WITH INDIAN TRIBES

Current through Register Vol. 35, No. 13, July 16, 2024
A.
Imposition barred by federal law -
				sale in Indian country of tangible personal property to a tribe or tribal
				member - general
(1) Except for
				receipts of a public utility from selling electricity, natural gas or water,
				receipts from selling tangible personal property to an Indian tribe or member
				thereof on that tribe's territory are not subject to the gross receipts tax if
				taxation of such receipts is prohibited by federal law.
(2) The person selling tangible personal
				property to an Indian tribe or member thereof on that tribe's territory must
				demonstrate that the sale is to an Indian tribe or member thereof. The person
				must also demonstrate that the sale takes place on the tribe's territory. The
				documents demonstrating that the receipts from these sales are not subject to
				tax under Subsection A of Section 3.2.4.9 NMAC shall be retained in the
				person's records.
(a) The first requirement
				may be met by obtaining a statement signed by the purchaser of the tangible
				personal property 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 a tribal member, the statement must either
				specify the tribal member's official tribal or BIA census number or, in the
				case in which the Indian tribe does not maintain an official census system, the
				signature of an official of the member's Indian tribe confirming this
				statement. This statement may also be provided to the person 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.
(b) The second requirement may be met if the
				person keeps records adequate to document that delivery of the tangible
				personal property to the buyer took place on the tribe's territory and that at
				least two of the following activities also took place on the tribe's territory:
(i) solicitation of the sale;
(ii) making of the contract of sale;
				or
(iii) payment for the property
				sold.
(3)
				Receipts from the sale of tangible personal property in New Mexico in Indian
				country to the following persons are subject to the gross receipts tax:
(a) a person who is not an Indian tribe or
				member thereof;
(b) a person who is
				an Indian tribe other than the Indian tribe on whose territory the sale takes
				place; and
(c) 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 Subsection A of Section 3.2.4.9 NMAC to be a
				member of the spouse's Indian tribe.
(4) Receipts from the sale of tangible
				personal property in New Mexico to an Indian tribe or member thereof are
				subject to the gross receipts tax when the sale takes place outside the tribe's
				territory, even if the sale takes place within the territory of another Indian
				tribe.