N.D. Admin. Code § 81-03-09-39 — Special rules - Publishing

The following special rules are established with respect to the apportionment of income derived from the publishing, sale, licensing, or other distribution of books, newspapers, magazines, periodicals, trade journals, or other printed material. 1. In general. Except as specifically modified by this rule, when a person in the business of publishing, selling, licensing, or distributing newspapers, magazines, periodicals, trade journals, or other printed material has income from sources both within and without this state, the amount of business income from sources within this state from such business activity must be determined under North Dakota Century Code chapter 57 -38.1 and the rules adopted under that chapter. 2. Definitions. The following definitions are applicable to the terms contained in this rule, unless the context clearly requires otherwise. a. "Outer-jurisdictional property" means certain types of tangible personal property, such as orbiting satellites, undersea transmission cables, and the like, that are owned or rented by the taxpayer and used in the business of publishing, licensing, selling, or otherwise distributing printed material, but which are not physically located in any particular state. b. "Print or printed material" includes the physical embodiment or printed version of any thought or expression including a play, story, article, column, or other literary, commercial, educational, artistic, or other written or printed work. The determination of whether an item is or consists of print or printed material must be made without regard to its content. Printed material may take the form of a book, newspaper, magazine, 33 periodical, trade journal, or any other form of printed matter and may be contained on any medium or property. c. "Purchaser" and "subscriber" mean the individual, residence, business, or other outlet that is the ultimate or final recipient of the print or printed material. Neither of such terms means or includes a wholesaler or other distributor of print or printed material. d. "Terrestrial facility" includes any telephone line, cable, fiber optic, microwave, earth station, satellite dish, antennae, or other relay system or device that is used to receive, transmit, relay, or carry any data, voice, image, or other information that is transmitted from or by any outer-jurisdictional property to the ultimate recipient thereof. 3. Apportionment of business income. a. The property factor. (1) Property factor denominator. All real and tangible personal property, including outer-jurisdictional property, whether owned or rented, which is used in the business must be included in the denominator of the property factor. (2) Property factor numerator. All real and tangible personal property owned or rented by the taxpayer and used in this state during the tax period must be included in the numerator of the property factor. (a) Outer-jurisdictional property owned or rented by the taxpayer and used in this state during the tax period must be included in the numerator of the property factor in the ratio that the value of such property which is attributable to its use by the taxpayer in business activities in this state bears to the total value of such property which is attributable to its use in the taxpayer's business activities everywhere. The value of outer -jurisdictional property to be attributed to the numerator of the property factor of this state must be determined by the ratio that the number of uplinks and downlinks, sometimes referred to as "half -circuits", that were used during the tax period to transmit from this state and to receive in this state any data, voice, image, or other information bears to the total number of uplinks and downlinks or half -circuits that the taxpayer used for transmissions everywhere. Should information regarding such uplink and downlink or half-circuit usage not be available or should such measurement of activity not be applicable to the type of outer -jurisdictional property used by the taxpayer, the value of such property to be attributed to the numerator of the property factor of this state must be determined by the ratio that the amount of time (in terms of hours and minutes of use) or such other measurement of use of outer -jurisdictional property that was used during the tax period to transmit from this state and to receive in this state any data, voice, image, or other information bears to the total amount of time or other measurement of use that was used for transmissions everywhere. (b) Outer-jurisdictional property must be considered to have been used by the taxpayer in its business activities within this state when such property, wherever located, has been employed by the taxpayer in any manner in the publishing, sale, licensing, or other distribution of books, newspapers, magazines, or other printed material and any data, voice, image, or other 34 information is transmitted to or from this state either through an earth station or terrestrial facility located in this state. Example: One example of the use of outer -jurisdictional property is where the taxpayer either owns its own communications satellite or leases the use of uplinks, downlinks, or circuits or time on a communications satellite for the purpose of sending messages to its newspaper printing facilities or employees in a state. The state or states in which any printing facility that receives the satellite communications is located and the state from which the communications were sent would, under this rule, apportion the cost of the owned or rented satellite to their respective property factors based upon the ratio of the instate use of said satellite to its total usage everywhere. Assume that ABC Newspaper Co. owns a total of four hundred million dollars of property everywhere and that, in addition, it owns and operates a communication satellite for the purpose of sending news articles to its printing plant in this state, as well as for communicating with its printing plants and facilities or news bureaus, employees, and agents located in other states and throughout the world. Also assume that the total value of its real and tangible personal property that was permanently located in this state for the entire income year was valued at three million dollars. Assume also that the total original cost of the satellite is one hundred million dollars for the tax period and that of the ten thousand uplinks and downlinks of satellite transmissions used by the taxpayer during the tax period, two hundred or two percent are attributable to its satellite communications received in and sent from this state. Assume further that the company's mobile property that was used partially within this state, consisting of forty delivery trucks, were determined to have an original cost of four million dollars and such mobile property was used in this state for ninety-five days. The total value of property to be attributed to this state would be determined as follows: Value of property permanently in state $3,000,000 Value of mobile property: 95/365 or (.2602) x $4,000,000: $1,048,000 Value of leased satellite property used instate (.02) x $100,000,000: $2,000,000 Total value of property attributable to state: $6,048,000 Total property factor percent: $6,048,000/($500,000,000): .01209 b. The payroll factor. The payroll factor must be determined in accordance with North Dakota Century Code chapter 57-38.1 and the rules adopted under that chapter. c. The sales factor. (1) Sales factor denominator. The denominator of the sales factor must include the total gross receipts derived by the taxpayer from transactions and activity in the regular course of its trade or business, except receipts that may be excluded under North Dakota Century Code sections 57 -38.1-15, 57-38.1-16, 57-38.1-17, and 57-38.1-18 and the rules adopted under those sections. 35 (2) Sales factor numerator. The numerator of the sales factor must include all gross receipts of the taxpayer from sources within this state, including the following: (a) Gross receipts derived from the sale of tangible personal property, including printed materials, delivered or shipped to a purchaser or a subscriber in this state. (b) Except as provided in subparagraph c, gross receipts derived from advertising and the sale, rental, or other use of the taxpayer's customer lists or any portion thereof must be attributed to this state as determined by the taxpayer's "circulation factor" during the tax period. The circulation factor must be determined for each individual publication by the taxpayer of printed material containing advertising and must be equal to the ratio that the taxpayer's instate circulation to purchasers and subscribers of its printed material bears to its total circulation to purchasers and subscribers everywhere. The circulation factor for an individual publication must be determined by reference to the rating statistics as reflected in such sources as audit bureau of circulations or other comparable sources, provided that the source selected is consistently used from year to year for such purpose. If none of the foregoing sources are available, or, if available, none is in form or content sufficient for such purposes, then the circulation factor must be determined from the taxpayer's books and records. (c) When specific items of advertisements can be shown, upon clear and convincing evidence, to have been distributed solely to a limited regional or local geographic area in which this state is located, the taxpayer may petition, or the tax commissioner may require, that a portion of such receipts be attributed to the sales factor numerator of this state on the basis of a regional or local geographic area circulation factor and not upon the basis of the circulation factor provided by subparagraph b. Such attribution must be based upon the ratio that the taxpayer's circulation to purchasers and subscribers located in this state of the printed material containing such specific items of advertising bears to its total circulation of such printed material to purchasers and subscribers located within such regional or local geographic area. This alternative attribution method is permitted only upon the condition that such receipts are not double counted or otherwise included in the numerator of any other state. (d) If the purchaser or subscriber is the United States government or the taxpayer is not taxable in a state, the gross receipts from all sources, including the receipts from the sale of printed material, from advertising, and from the sale, rental, or other use of the taxpayer's customer's lists, or any portion thereof that would have been attributed by the circulation factor to the numerator of the sales factor for such state, must be included in the numerator of the sales factor of this state if the printed material or other property is shipped from an office, store, warehouse, factory, or other place of storage or business in this state.